A. Starting Points

Ordinarily, we construct theories to help improve our understanding of existing concepts;Footnote ⁴⁷ that is, to enhance the clarity and rigor of concepts, like the Rule of Law,Footnote ⁴⁸ which we already employ to describe and evaluate the world around us.

Since any approach to conceptual analysis aims at improving our understanding of existing concepts, the natural starting point is the way in which the concept is already used and understood.Footnote ⁴⁹ Consequently, those engaged in conceptual analysis typically assert the importance of “respecting our intuitions”Footnote ⁵⁰ about the concept under analysis. These “intuitive”Footnote ⁵¹ or “considered”Footnote ⁵² judgments consist of firmly held ideas about the content of the concept, typically derived from common usage.

Our intuitions about the nature of concepts frequently diverge. Some individually held intuitions will be contested, even idiosyncratic. But meaningful theoretical debate over concepts requires that the intuitions from which we construct our theories are, as far as possible, convergent—that all participants in the debate are articulating theories about essentially the same thing.Footnote ⁵³ Put another way, it is preferable that controversial claims about concepts, including the Rule of Law, are the outputs not the inputs of conceptual analysis.Footnote ⁵⁴ To the extent that analysis of a concept proceeds from controversial inputs, its conclusions can be easily dismissed as tendentious.Footnote ⁵⁵ Controversial claims are more robust when they are derived from widely shared premises. To avoid notionally rivalrous theories of the same concept taking radically different starting points, conceptual analyses should proceed from a set of central intuitions about the concept under analysis. These are what Scott Shapiro labels “truisms”:Footnote ⁵⁶ “truths that those who have a good understanding of [the concept] take to be self-evident, or at least would take to be so on due reflection.”Footnote ⁵⁷

It is vital, therefore, to identify intuitions which are reliable starting points for constructing theories of the Rule of Law. I shall suggest a few examples, all of which are widely invoked and utilized as analytical starting points in the theoretical literature. For one, it is a matter of broad consensus that the Rule of Law is or can be valuable.Footnote ⁵⁸ Next, although it is a property of political systems in the round, the Rule of Law has a special connection to law and legal systems.Footnote ⁵⁹ Other sound analytical starting points include three core themes which, for Brian Tamanaha, persist throughout the long history of Rule of Law theory.Footnote ⁶⁰ These are, first, the idea of “government limited by law.”Footnote ⁶¹ Second, a preference for government through “the rule of law, not man.”Footnote ⁶² And, third: “formal legality,”Footnote ⁶³ that is, a demand for compliance with core Rule of Law principles—publicity, nonretroactivity, consistent application, and the like.

These are the kinds of truisms that are likely to constitute any “folk theory” of the Rule of Law.Footnote ⁶⁴ Equally, they are the central intuitions we must “respect”Footnote ⁶⁵ and adopt as starting points in theory-construction. But how exactly should we use them?

B. Coherent Rationalization

Theories of the Rule of Law are not mere reportage of central intuitions.Footnote ⁶⁶ Rather, while exhibiting broad correspondence with those intuitions, theories aim principally at coherent rationalization. A theory that spurns too many central intuitions is implausible. Yet, while respect for central intuitions is important, it is not absolute. Our starting points are expressly provisional: many, perhaps most, do not operate as an automatic veto over theories which spurn them.Footnote ⁶⁷ Our intuitions are instead subject to revision in light of theoretical reflection. Assuming sufficient justification, they can be revised or discarded.Footnote ⁶⁸

Justification for amending, discarding, or extending an intuition typically derives from another vital methodological goal, namely, theoretical coherence.Footnote ⁶⁹ A coherent theory of the Rule of Law is one in which both the value or point the concept is claimed to serve and all the specific principles that concretize that value or point in practice are consistent with one another and mutually reinforcing. All principles must be compatible with all other principles, all underlying values must be compatible with any other underlying values, and the full set of principles must be compatible with the full set of underlying values. While specific principles and values should accord with central intuitions as far as possible, intuitive starting points which cannot be coherently accommodated—perhaps because they are mutually incompatible—should be amended or jettisoned.

More specifically, coherence imposes two main demands. First, theories should aim to secure coherence in the sense of internal connection. The various claims made by a theory should tesselate; it should be possible to explain how the distinct elements of the concept relate. For Tasioulas, coherence entails that the specific principles endorsed by a theory: “must be the expression of an underlying ethical concern or coherent set of concerns and not simply an arbitrarily assembled set of desiderata.”Footnote ⁷⁰ For Krygier, similarly, specific principles concretize our understanding of what the value(s) require in practice.Footnote ⁷¹ This derivation ensures both the internal connection of the specific principles, necessarily connected by their mutual derivation from a coherent set of values, and internal connection between the value(s) underpinning the Rule of Law and its specific principles. Accordingly, we should—bluntly—reject theories which consist of lists of unconnected things a theorist takes to be valuable.

Second, theories should generally seek coherence in the sense of deductive closure. Footnote ⁷² Not only should the Rule of Law include only specific principles derived from its underlying value(s), but it should, all else being equal, include all the specific principles entailed by that value(s). For this reason, coherence often requires extrapolation beyond the content of our intuitions. To illustrate, suppose a theory grounds the Rule of Law in Value A. Suppose, additionally, that Principles X, Y, and Z flow logically from Value A, in the sense that when Principles X, Y, and Z are instantiated, Value A is secured. If this theory endorses only Principles X and Y as part of the Rule of Law—not Principle Z—it is, all else being equal, deficient for failing to follow its premises to deductive closure. Of course, sometimes all else is not equal. For example, we might justify excluding Principle Z if its inclusion would be radically counterintuitive, perhaps taking us beyond the intuitively appropriate “domain of application”Footnote ⁷³ of the concept. If Principle Z relates not to systems of government, but family life or board games, then we can justify its exclusion.

Conceptual analysis thus mediates between central intuitions and the requirement of coherent rationalization. Intuitions are both starting points and constraints on the conclusions that may plausibly be drawn, since even coherent theories may egregiously transgress our intuitions such that they must be rejected. At the same time, coherence will sometimes require modest departures from these starting points. Our theories might discard, revise, or extend our intuitions when necessary.

A. The Concept and the Rule of Law

A common argument in Rule of Law theory begins with the uncontroversial observation that the Rule of Law is connected to the concept of law. However, from this central intuition, theorists extrapolate radically different theories. For some, one’s conception of the Rule of Law flows more or less automatically from one’s conception of law,Footnote ⁷⁷ resulting in the following form of argument:

1. 1. The Rule of Law is the proper instantiation of law.

2. 2. Law is Y.

3. 3. Therefore, the Rule of Law requires the proper instantiation of Y.

At stage 2, this argument necessarily invokes a cross-reference to one or other conception of the concept of law.

We find several versions of this argument in the literature, on both sides of the thin/thick divide. For Ronald Dworkin, thin, “rule-book” conceptions of the Rule of Law derive from an impoverished positivist conception of law,Footnote ⁷⁸ whereas the merits of a thicker “rights” conception of the Rule of Law become apparent once we accept a superior, nonpositivist conception of law.Footnote ⁷⁹ Thin theories sometimes adopt a similar logic.Footnote ⁸⁰ Shapiro, for example, proposes a positivist conception of law as “an activity of social planning.”Footnote ⁸¹ With this theory of law in hand, he straightforwardly concludes that “the Rule of Law […] is the Rule of Social Planning: its value derives entirely from the benefits that social planning generates.”Footnote ⁸²

These arguments build upon a central intuition and the extrapolations seem analytically sound. Yet the resulting conceptions of the Rule of Law are premised on controversial conceptual cross-references which, on the face of it, cause deadlock. That a legal positivist can plausibly extrapolate a thin conception of the Rule of Law from their conception of law establishes nothing, by itself, about the plausibility of a thick theory premised on a different, nonpositivist jurisprudential theory. The resulting disagreement cannot be overcome within the parameters of conceptual analysis of the Rule of Law, since it stems not from an unsustainable intuition or an analytical error in rationalization, but from deep-rooted disagreements about another concept altogether. Contested outputs from theories about the nature of law are reframed as inputs to theories of the Rule of Law, and debates over the Rule of Law conducted in these terms therefore cash out as proxy battles in the wider disputes of general jurisprudence.Footnote ⁸³

B. Extrapolating from the Core

Another central intuition holds that the Rule of Law must include requirements of “formal legality”:Footnote ⁸⁴ the core principles of generality, promulgation, nonretroactivity, clarity, consistent application, and so on. This intuition specifies both a fairly detailed set of practical requirements and the essential point of these practical requirements: providing certainty, predictability, and reliable expectations to law’s subjects. Both thin and thick theories treat these ideas as analytical starting points and justify their conceptions of the Rule of Law as coherent rationalizations of or extrapolations therefrom.

For proponents of thin conceptions, knowing where one stands, in relation to state power, other individuals, or both, is the distinctive point or value of the Rule of Law. For Hayek, core principles ensure there are “rules which make it possible to foresee with fair certainty how [government] will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”Footnote ⁸⁵ For Fuller, in law-making, “Government says to the citizen in effect, ‘These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to our conduct.’”Footnote ⁸⁶ For Raz, “violation of the rule of law can take two forms. It may lead to uncertainty or it may lead to frustrated and disappointed expectations.”Footnote ⁸⁷ For Rawls, the Rule of Law requires a system of legal rules that “establish a basis for legitimate expectations.”Footnote ⁸⁸ Typically, this value is conceived as a discrete element of individual dignity,Footnote ⁸⁹ agency,Footnote ⁹⁰ or freedom,Footnote ⁹¹ often within a broadly value-pluralist political theory.Footnote ⁹² For thin theorists, there is a distinct point or value to certainty and predictability, and core principles exhaust the practical requirements for a system of government to create and maintain certain and predictable expectations among its subjects. Because knowing where one stands is perfectly compatible with being badly or unequally treated,Footnote ⁹³ there is no scope for justifying the inclusion of supplementary principles like respect for human rights.

Meanwhile, proponents of thicker theories sometimes contend that the point of core principles can only be properly understood by reference to values which equally justify supplementary principles such as nondiscrimination and human rights. An example, discussed in detail later,Footnote ⁹⁴ is T.R.S. Allan’s argument that core principles—and the measure of certainty and predictability they establish—are just one element of a rich understanding of freedom which also requires nondiscrimination and protection of fundamental rights.Footnote ⁹⁵ For Allan, supplementary principles are not merely connected to core principles as distinct aspects of a just political system, but are logically entailed by the value that underpins core principles. Deductive closure thus requires that, if we take formal legality as our starting point, supplementary principles must be recognized as requirements of the Rule of Law alongside core principles.

As with arguments premised on the intuition that the Rule of Law is connected to law, theories starting from the intuition that the Rule of Law is committed to formal legality are inevitably shaped by controversial conceptual cross-references. Thin theories are premised on narrower political theoretical concept(ion)s of freedom, dignity, and so on, which hold that the certainty and predictability which core principles secure has a distinctive point or value. Thick theories often invoke broader, less pluralist, political theoretical concepts to rationalize the same intuitions. Rivals each seem to propose internally coherent extrapolations, but their incompatible conceptual cross-references entail deadlock.

C. The Impact of Conceptual Cross References

While conceptual cross-references are rarely disguised,Footnote ⁹⁶ their implications for theoretical debates over the Rule of Law are more opaque.

Conceptual cross-references cause deadlock for two, connected reasons. First, they are unavoidable. Without conceptual cross-references, rational reconstruction in conceptual analysis cannot get off the ground: we cannot hope to explain the intuition that the Rule of Law is fundamentally connected to law without a reference to some conception of law. Nor can a theory explain or extrapolate from the point or value of core principles without invoking concepts capable of explaining that point or value. To rationalize indeterminate intuitions, we must invoke concepts which supply the determinacy required to extrapolate a theory.

Second, the indeterminacy of our starting points often entails that more than one concept or conception can be defensibly cross-referenced. We might agree that cross-referencing the concept of law is essential, but our intuitions do not in themselves point to the relevance or correctness of any particular conception of law: lay or jurisprudential; positivist or nonpositivist. These differences in conceptual cross-references lead to practically irresolvable differences between theories of the Rule of Law.

It might be objected that deadlock is only apparent: all we need to do is ensure that we cross-reference the correct concepts. On this view, deadlock between theories of the Rule of Law premised on rival theories of law could be overcome by revisiting longstanding jurisprudential debates and ensuring we cross-reference the best theory of law. Resolve antecedent conceptual disputes in jurisprudence or political theory and—ta-da—apparently deadlocked debates over the Rule of Law can be easily settled. However, while this might seem an easy solution, theoretical debates over the antecedent concepts are themselves frequently deadlocked, such that there is no realistic prospect of identifying the correct conceptual cross-references.Footnote ⁹⁷

The conclusion of this Section—that deadlock in Rule of Law theory is inevitable—might seem bleak. But there are at least two important benefits to this improved understanding of the influence and ramifications of conceptual cross-references in theory-construction. First, it yields intrinsic benefits for our understanding of debates over the Rule of Law. Once the prevalence and impact of conceptual cross-references are fully appreciated, it becomes clear that theoretical claims about the Rule of Law are best understood, and should be framed,Footnote ⁹⁸ in a hypothetical or conditional form: if X, then Y. For instance, if we accept Dworkin’s nonpositivist conception of law, then we should adopt a thick conception of the Rule of Law. If Shapiro’s planning theory is correct, then we should adopt a thin theory. Rival theories are thus re-framed as presenting conclusions which hold true, given specific background assumptions about the nature of law, political morality, and so on. In so doing, we may not get any closer to settling our primary question—“what is the Rule of Law?”—but we should better understand the issues upon which that question turns.Footnote ⁹⁹ We can thus explain why rival theorists so frequently seem to be engaged in irresolvable disagreements. That constitutes philosophical progress.

Second, a rigorous understanding of the mechanics of theory-construction and the causes of deadlock can also help us in identifying and pursuing strategies for addressing deadlock. For example, faced with apparent deadlock, we might embrace conceptual pluralism: perhaps we should accept there are “a modest number of equally viable [conceptions], each serving a different worthwhile purpose.”Footnote ¹⁰⁰ Alternatively, we might do better to shift (or explicitly embraceFootnote ¹⁰¹) an “ameliorative,”Footnote ¹⁰² “conceptual engineering,”Footnote ¹⁰³ or “conceptual ethics”Footnote ¹⁰⁴ approach, under which our question is how we should understand the term “the Rule of Law,” in light of the uses we have for it and the aims or values we want it to secure. I shall leave these possibilities, which involve resigning to the inevitability of deadlock and/or significantly departing from the existing methodological framework, to one side.Footnote ¹⁰⁵ Instead, I shall focus on how insights about theory-construction can improve the productivity of critique within the prevalent methodological framework. I shall argue that understanding the nature and impact of conceptual cross-references helps us, first, to identify and avoid critical strategies which are destined to fruitlessly reproduce deadlock and, second, to identify and rigorously pursue critical approaches which avoid those frustrations.

A. Dissonant Critique

Dissonant critique explicitly or implicitly targets a theory’s selection of conceptual cross-references. It contends, in effect, that a rival theory is mistaken not because it lacks coherence or because it proceeds from noncentral intuitions, but because it is premised on cross-references to concept(ion)s which are themselves mistaken. Since antecedent disagreements over conceptual cross-references are a common reason for disagreements over consequent conceptions of the Rule of Law, dissonant critique may seem the obvious means for resolving deadlock. But I shall argue that dissonant critique is generally unproductive in this regard: it reproduces deadlock-inducing aspects of theory-construction and therefore fails significantly to advance our understanding.

Dissonant critique takes different forms. First, it might contend that a theory’s selection of concept is mistaken. For example, when it is contended that a thick theory wrongly explains central intuitions through a cross-reference to an unsustainable monist conception of justice rather than a more pluralist conception of dignity.Footnote ¹⁰⁷ Second, critique might endorse a rival theory’s selection of concept, but dispute its selection of conception. For example, the necessity of cross-referencing the concept of law might be common ground, but critique might allege that a rival theory is undermined by cross-referencing a mistaken conception.Footnote ¹⁰⁸ Either way, dissonant critique rests on the claim that a theory is defective because one of its conceptual cross-references is mistaken.

The effect of dissonant critique is to shift our critical attention from debates over (consequent) conceptions of the Rule of Law to (antecedent) debates over and between cross-referenced concepts.Footnote ¹⁰⁹ Thus, when it is argued that a thin theory of the Rule of Law is mistaken because it flows from an implausible positivist conception of law,Footnote ¹¹⁰ the pertinent debate does not concern the Rule of Law per se, but the plausibility of legal positivism. There are parallels with elements of what David Chalmers calls the “method of elimination.”Footnote ¹¹¹ For Chalmers, when elimination reveals that disagreements over a term like “the Rule of Law” boil down to more fundamental disputes, expressly re-focusing on those disputes may, sometimes, result in “significant philosophical progress.”Footnote ¹¹² Indeed, this may explain the attraction of dissonant critique to those who employ it reflectingly. However, while the shift in focus implicit in dissonant critique may seem an ideal route to resolving disputes over the Rule of Law, in many cases—including this one—it will not do so in practice. Indeed, Chalmers acknowledges that shifting focus will often not be “a silver bullet for solving philosophical problems.”Footnote ¹¹³

In the context of debates over the Rule of Law, dissonant critique fails to contribute significantly to our understanding because it relies on the possibility of drawing firm conclusions from antecedent conceptual debates—about the correctness of rival theories of law, freedom, justice, etc.—which those debates cannot yield. The antecedent conceptual disagreements are themselves deeply entrenched,Footnote ¹¹⁴ such that shifting focus will rarely establish the claim that dissonant critique relies on: that a concept(ion) cross-referenced in a rival theory is manifestly mistaken. Although those advancing dissonant critiques will implicitly rely on or explicitly advance arguments to that effect, those targeted by these critiques usually have plausible responses. So, while those who would reject a thin theory premised on a cross-reference to legal positivism will generally have arguments for rejecting legal positivism,Footnote ¹¹⁵ legal positivists will typically respond with reasonable arguments that legal positivism is not only plausible but superior to the alternatives.Footnote ¹¹⁶ The essential problem with dissonant critique is that one deadlocked debate cannot be settled by reference to a more fundamental deadlocked debate. Unless entrenched antecedent debates can be decisively settled, shifting focus cannot advance debates over the Rule of Law.

For this reason, dissonant critique rarely adds much, if anything, to what is already latent in theory-construction, especially when our theoretical conclusions are properly understood as conditional.Footnote ¹¹⁷ To illustrate: to the conditional theoretical conclusion “if we adopt this concept/conception of law (or freedom, justice, etc.), then we should adopt this conception of the Rule of Law,” dissonant critique merely adds the obvious (and still conditional) critical addendum: “if that conceptual cross-reference is uniquely correct, any theory premised on another conceptual cross-reference is mistaken.” Since more than one conceptual cross-reference can usually be plausibly defended, and since Rule of Law theorists generally invoke plausibly defensible conceptual cross-references, dissonant critique will frequently boil down to the observation that differences in conceptual cross-references result in differences between theories. But we don’t need dissonant critique to make that observation.

While dissonant critique will generally fail to contribute to our understanding in accordance with its stated aim, it is not necessarily devoid of insight, notwithstanding that any such insight tends to be obscured by its overreaching framing. Take a simple example of dissonant critique: “Theory A, derived from Conception X, is mistaken because its conclusions do not accurately extrapolate from Conception Y, unlike Theory B.” Assuming this critique cannot deliver on its stated aim of establishing the unsustainability of Theory A for the reasons outlined above, it may nevertheless make more modest, implicit contributions. First, dissonant critique, especially once we understand its essential conditionality, contains important explanations of how and especially why different theories differ. Second, it might contribute circuitously to justifying conclusions in theory-construction. Even if the argument that Theory A would have been Theory B had it embraced Conception Y not Conception X is ineffective qua critique, it may help explain why one who does embrace Conception Y regards themselves as precluded from endorsing Theory A and bound to adopt Theory B. Third, sometimes it will be initially unclear whether Theory A cross-references Conception X or Conception Y. In that case, a critique which turns out to be dissonant may contribute to our understanding by prompting clarification of Theory A. When there is uncertainty about the content of a theory’s conceptual cross-references,Footnote ¹¹⁸ or they lack adequate justification, a critique like this one might provoke proponents of Theory A into responding that the critique, premised on Conception Y, is misguided because Theory A is actually premised on Conception X.Footnote ¹¹⁹ While that entails the original critique is dissonant, it nevertheless contributes to our understanding by prompting an important clarification.

However, while dissonant critique may contribute to our understand in these latent, collateral ways, there are two important caveats. First, it virtuallyFootnote ¹²⁰ always fails to contribute what it claims: to reveal flaws in rival theories necessitating revision or abandonment. Second, relatedly, the prevalent framing of dissonant critique is counter-productive, insofar as it obscures these latent contributions. Like a parlor game in which participants construct English sentences using German grammatical rules (“I have my steak enjoyed”), the misleading framing is obfuscatory. Any collateral insights will be more effective if dissonant critique is re-framed in terms which reflect the modest contributions it does make, rather than the more radical claims it cannot substantiate.

B. Internal Critique

While dissonant critique seems destined to reproduce the intractable disagreements over conceptual cross-references which result in deadlock, there are alternative forms of critique which do not. Internal critique is distinctively “internal” because it adopts, arguendo, the fundamental premises of its target—including that theory’s conceptual cross-references. Rather than fruitlessly targeting a theory’s controversial—yet defensible—selection of conceptual cross-references, internal critique accepts those premises and targets a theory on its own terms, focusing on its accommodation of central intuitions and the coherence of its rationalization.

There is resemblance between this methodology and the “immanent critique” associated especially with Hegel, Marx, and others who follow in the “critical” tradition.Footnote ¹²¹ Put simply, immanent critique seeks to expose existing social orders or ideologies as incoherent; as failing to adhere to their own (internal) standards.Footnote ¹²² Structurally, internal critique is similar: we aim to criticize an object not on the basis of “‘external’ normative standards,”Footnote ¹²³ but based on standards accepted by or latent in the target of the critique.

Moreover, internal critique shares the commonly touted advantages of immanent critique. For James Gordon Finlayson, immanent critique is widely regarded as: “first, meaningful, contentful, relevant, or applicable; second, persuasive, credible, and convincing; and third, effective, practical, or useful.”Footnote ¹²⁴ The first, so-called “cognitive and epistemic”Footnote ¹²⁵ advantages resonate with my arguments for pursuing internal critique in debates over the Rule of Law: namely, that it genuinely challenges the cogency of its target and forces meaningful responses. These advantages of immanent critique can be contrasted with corresponding disadvantages of dissonant (or “transcendent”) criticism, which are, starkly: “meaningless or empty; irrelevant, inapplicable.”Footnote ¹²⁶

Should we worry that internal critique in this context is equally susceptible to the supposed defects of immanent critique, qua social critique? For example, Rachel Fraser contends that the internality of immanent social critique cannot be maintained while ensuring genuine critical bite, since any useful standard of criticism ultimately must be imported, not “contained within”Footnote ¹²⁷ society.Footnote ¹²⁸ Fortunately, this and other concernsFootnote ¹²⁹ with immanent social critique do not apply to internal critique of Rule of Law theories. While the pertinent standards might seem external insofar as they are derived from freestanding accounts of law, justice, or philosophical methodology, they are rendered internal to specific theories of the Rule of Law when they are invoked by theorists in theory-construction. Unlike societies, theorists can incorporate normative standards, expressly or by necessary implication, to which their theories can reasonably be held. These differences not only demonstrate the prima facie viability of internal critique in debates over the Rule of Law but also show it to be operationally, if not structurally, distinct from other prominent versions of immanent critique.

In Rule of Law theory, internal critique can take different forms. Where a theory relies on several conceptual cross-references—a conception of law as well as a conception of human dignity, say—one might internally critique that theory on grounds that the various conceptual cross-references are mutually incompatible. Such critique, although it relates to conceptual cross-references, remains internal insofar as it assumes the plausibility of the cross-referenced concepts individually while challenging the coherence of invoking them simultaneously.

Another form of internal critique, highlighted in Section IV’s case study, problematizes a theory’s extrapolation from cross-referenced concepts. This kind of critique takes the following basic form: “even accepting arguendo the plausibility of Concept X, which you cross-reference to extrapolate Theory A, Concept X actually entails Theory B.”

For internal critique to succeed in posing a genuine challenge to a rival theory, it is vital that the critic adheres staunchly to that theory’s premises, including its conceptual cross-references. If a purportedly internal critique strays from its target’s premises, it will collapse into dissonant critique and will be susceptible to easy rejection on the basis that it proceeds at cross-purposes.Footnote ¹³⁰

Crucially, internal critical arguments recognize and as far as possible circumvent the deadlock-inducing impacts of conceptual cross-references. The claim I shall aim to substantiate in the next Section is as follows. Absent improbable resolution to the big debates in political theory and jurisprudence, internal critique is the most promising means for advancing debates over the Rule of Law: whether by problematizing existing theories, suggesting modifications thereto, or facilitating bridge-building between rival approaches.

A. A (Purportedly) Internal Critique of Thin Theories

Thin theories take the Rule of Law to consist solely of core principles. The plausibility of this stance depends on core principles being justified, and coherently connected, by a value or point which does not imply the inclusion of any supplementary principles.Footnote ¹³³ Allan’s internal critique targets this stance, contending that even if we accept the premises of thin theories arguendo, theoretical coherence demands that supplementary principles are recognized as part of the Rule of Law.

According to Allan, the value or point of core principles identified in thin theories is their contribution to securing certainty and predictability in individuals’ livesFootnote ¹³⁴ and, more specifically, their contribution to securing individual freedom. He finds the latter claim to be explicit in Hayek’sFootnote ¹³⁵ thin theory of the Rule of Law and implicit in others.Footnote ¹³⁶ The crux of Allan’s critique is that, once the implications of freedom are fully understood, coherence demands the recognition of several supplementary principles which derive from precisely the same value.Footnote ¹³⁷ Allan contends, in effect, that a theory which includes core principles must either endorse supplementary principles or embrace incoherence. And the critique is seemingly internal, since it claims to derive critical conclusions from the premises of its target theories.

For Allan, the conception of freedom which underpins the Rule of Law is the KantianFootnote ¹³⁸ “ideal of liberty”Footnote ¹³⁹ as “independence.”Footnote ¹⁴⁰ Freedom means “independence from being constrained by another’s choice”Footnote ¹⁴¹ and the principal threat to individual liberty is subjection to powers of “arbitrary interference – interference at the will or pleasure of other persons.”Footnote ¹⁴² This Kantian conception of liberty “form[s] a bridge between formal and more substantive accounts of the rule of law.”Footnote ¹⁴³ According to Allan, liberty is “embedded”Footnote ¹⁴⁴ within thin theories’ justification of core principles, which serve to render individuals “better able to predict the incidence of governmental interference [and therefore able to] arrange her affairs in the manner best suited to her aims or interests.”Footnote ¹⁴⁵ When there are known, followable, and reliably enforced legal standards,Footnote ¹⁴⁶ individuals enjoy “an inviolable domain of action,”Footnote ¹⁴⁷ in which they can make plans and decisions. To the extent that core principles are violated, the determinacy that law provides—and which is essential for securing freedom—is undermined. Individuals become dependent in the sense that their choices, rights, and obligations are undermined by a pervading uncertainty and unpredictability. This starting point obviously resonates with the widespread thin theory view that core principles serve to secure certainty and predictabilityFootnote ¹⁴⁸ and, on the face of it, the more specific view expressed by some thin theorists that certainty and predictability serve the value of freedom.

However, Allan argues that if the Rule of Law serves to secure liberty, it must be understood as extending beyond core principles. Once we perceive that the Rule of Law “is best understood […] as compliance with those conditions under which each person’s freedom (or liberty) is secured,”Footnote ¹⁴⁹ we find that it also justifies supplementary principles. First, to uphold liberty, law must treat “people equally in the sense that both departures from the general rule in particular cases and the divergent treatment of different groups of persons must be properly justified.”Footnote ¹⁵⁰ Second, liberty requires that legal systems secure the common good by upholding fundamental human rights.Footnote ¹⁵¹ On this Kantian approach, the common good does not equate to individual or collective interests. Instead, liberty requires protection of those “natural rights implicit in the basic idea of freedom”Footnote ¹⁵² including “all the familiar civil and political rights,”Footnote ¹⁵³ to “conscience, speech, association, and personal liberty.”Footnote ¹⁵⁴ “Most” of the rights in the 1789 French Declaration of the Rights of Man and Citizen and the Universal Declaration are required by the Rule of Law, albeit that there is “scope for different interpretations.”Footnote ¹⁵⁵

Since these requirements derive from liberty, supplementary principles—and a thick conception of the Rule of Law—are entailed by precisely the “same ideal”Footnote ¹⁵⁶ which is supposedly invoked by thin theorists to justify core principles. Allan thus challenges the coherence of thinner accounts with a seemingly internal critique. Deductive closure requires that a theory incorporate all the logical ramifications of its premises unless there is good reason not to,Footnote ¹⁵⁷ and according to Allan, nondiscrimination and protection of human rights are logically and inextricably entailed by the premises of thin theories. This argument would—if successful—demonstrate that thin theories are incoherent.

However, as above,Footnote ¹⁵⁸ the productivity of any internal critique depends on its adherence to its target theories’ premises. To the extent that it adheres to the conceptual cross-references of thin theories, Allan’s critique will be internal, posing a meaningful challenge demanding a meaningful response, and therefore productive. To the extent that it deviates from its targets, however, this critique collapses into dissonance and unproductivity. As we have seen, Allan’s critique invokes a Kantian conception of liberty. This conception of liberty is not (in itself) a central intuition about the Rule of Law. Instead, it is a distinct concept, cross-referenced to help rationalize central intuitions about the Rule of Law. The internality or dissonance of Allan’s critique thus turns on the extent to which the thin theories it targets are—or implicitly must be—premised on that same conceptual cross-reference.

To begin with, sweepingFootnote ¹⁵⁹ conclusions about the incoherence of thin theories in general cannot be sustained by this critique, absent a compelling argument that Kantian political theory is uniquely correct. As regards many—perhaps most—thin accounts of the Rule of Law, the above argument registers dissonantly. First, thin theories which plausibly cross-reference concepts other than freedom—agencyFootnote ¹⁶⁰ or dignityFootnote ¹⁶¹, say—are not obviously imperiled by a critique premised on the notion that the scope of the Rule of Law is determined by the requirements of Kantian freedom. The critique says, in effect: “if your theory cross-referenced Concept X (Kantian freedom) instead of Concept Y (agency, dignity, etc.), it would have reached different conclusions.” But as long as invoking Concept Y is plausible, the argument registers dissonantly and is destined to deadlock-reproducing unproductivity.

Second, Allan’s critique also registers dissonantly in relation to some thin theories which expressly cross-reference the concept of freedom in their rationalization of core principles. Cross-references to the concept of freedom need not be cross-references to a specifically Kantian conception of freedom. It is plausible to advance a narrower, non-Kantian conception of freedom as independence or nondomination. For example, Frank Lovett premises a thin account of the Rule of LawFootnote ¹⁶² on a narrow, procedural conception of freedomFootnote ¹⁶³ as nondominationFootnote ¹⁶⁴ under which freedom is one value in a pluralist political theory, secured solely by subjecting power to effective constraints.Footnote ¹⁶⁵ Assuming this narrow, non-Kantian conception of freedom is plausible, Allan’s critique again registers dissonantly.

It follows from these observations that internal critique will generally be more modest, perhaps even idiographic, eschewing grand claims to have established the implausibility of all rival theories. A specific critique may be genuinely internal in relation to some thin or some thick theories, but probably not all.

Allan’s best—indeed only—claim to be prosecuting a genuinely internal critique relates to those thin theories which can plausibly be read as deriving from a specifically Kantian conception of freedom. Among those Allan cites, Friedrich Hayek’s and Nigel Simmonds’ theories are the most likely candidates. Both HayekFootnote ¹⁶⁶ and SimmondsFootnote ¹⁶⁷ endorse a conception of freedom as independence, contrasting the liberty of the free person with the domination of slaves. Yet, according to Allan, both mistakenly derive thin conceptions of the Rule of Law.

If these theories cross-reference Kantian freedom, Allan’s critique is internal. It registers like this: “you (Hayek and Simmonds) say a thin conception of the Rule of Law can be derived from central intuitions rationalized in line with a conceptual cross-reference to Kantian freedom, but if you had followed the logic of your premises, you would have endorsed a thick conception.”

It may be possible to quibble over whether Hayek and Simmonds do endorse this specific Kantian conception of freedom.Footnote ¹⁶⁸ While both define freedom as independence, it is at least arguable that they both have a thinner, non-Kantian conception in mind. Simmonds, for instance, contends that freedom is secured simply by establishing defined areas of optional conduct,Footnote ¹⁶⁹ that these benefits accrue irrespective of whether the law’s objectives are “good or bad,”Footnote ¹⁷⁰ and that “[l]egality and justice are distinct concepts and values.”Footnote ¹⁷¹ All these claims conflict with Allan’s monist, Kantian conception of freedom. The critique may register dissonantly in relation to Simmonds, too, boiling down to the observation that his theory of the Rule of Law might have been thicker, had he endorsed a thicker conception of freedom.

Hayek’s philosophical outlook is more avowedly Kantian.Footnote ¹⁷² But even so, it may be possible to dispute the notion that his theory of the Rule of Law derives from the conception of freedom in Kant’s political theory. Although Hayek does invoke freedom as independence, his references to Kant in respect of the Rule of Law generally refer to Kant’s distinct moral philosophy,Footnote ¹⁷³ emphasizing connections between the Rule of Law’s preference for general legal standards and the universalizability which defines Kant’s categorical imperative. Elsewhere, Hayek’s views on securing liberty possess a distinctly consequentialist characterFootnote ¹⁷⁴ that is alien to Kantian political theory.Footnote ¹⁷⁵ Others have argued that a distinctive “market republican” conception of freedom underpins Hayek’s theory of the Rule of Law.Footnote ¹⁷⁶ There may thus be scope to dispute the internality of Allan’s critique even of Hayek, the theorist to whom it most clearly seems to apply.

I shall not analyze in detail the extent to which these theories do (or implicitly must) commit to a Kantian conception of freedom. Instead, I shall suggest alternative conclusions. On the one hand, if the best reading of Simmonds and Hayek’s theories of the Rule of Law entails that they are not premised on a Kantian conception of freedom, then Allan’s purported critique is wholly dissonant and—qua critique—largely unproductive.Footnote ¹⁷⁷ More generally, for internal critique to avoid this collapse into dissonance, it is important to rigorously establish that the premises of the critique are in fact shared by the target theory.

On the other hand, if Allan’s critique is internal with regard to Hayek and Simmonds, it follows that it may productively advance debates over the Rule of Law. It may turn out that the best—or only—possible rationalization of central intuitions about the Rule of Law, in conjunction with a cross-reference to a Kantian conception of freedom, yields a thick theory. But that remains to be seen. Internal critique will often prompt an internal debate over how to understand a concept, assuming shared premises. Indeed, as I shall argue next, it is arguable that a thin theory is plausible or preferable, even assuming Kantian freedom as a premise.

B. An Internal Critique of a Kantian Thick Theory

The above discussion of Allan’s critique is not the end of the story. First, even if Allan’s argument—qua critique of thin theories—is wholly dissonant, it still serves as an exercise in (thick) theory-construction against which we might prosecute an internal critique of our own. Second, if Allan’s critique does register internally in relation to some theories, it merely establishes an internal debate over how to theorize the Rule of Law on the basis of a cross-reference to Kantian freedom. Either way, we can apply the methodology of internal critique to Allan’s positive claims about the extrapolation of a thick theory of the Rule of Law from a cross-reference to Kantian freedom.

Construed as an exercise in theory-construction, Allan contends that the certainty and predictability secured by core principles are but one requirement of a Kantian conception of freedom. That being so, core Rule of Law principles are inextricably connected to various other requirements of Kantian freedom: specifically, nondiscrimination and fundamental rights. That inextricable connection points toward a thick theory of the Rule of Law. Since core principles are justified as part of the Rule of Law due to their contribution to securing freedom, deductive closure suggests that the other requirements of that value, including nondiscrimination and human rights, should pro tanto be recognized as part of the Rule of Law alongside core principles.Footnote ¹⁷⁸

Accepting the cross-reference to the Kantian conception of freedom arguendo—as we must in internal critique—the logic of the argument seems superficially compelling. While deductive closure may be spurned to avoid profoundly counter-intuitive conclusions—that the Rule of Law requires government through ad hoc commands, say—that caveat does not seem to apply to what is, on Allan’s account, a typical thick theory. It is not plausible to argue that nondiscrimination and human rights are straightforwardly ruled-out as principles of the Rule of Law by central intuitions, any more than it is to argue that those principles are intuitively essential to the concept, because there is no sufficiently widely shared view of exactly how broad the Rule of Law is. Of course, that isn’t to say that the plausible breadth of Rule of Law theories is wholly unconstrained: central intuitions suggest that conceptions which are extremely broad or narrow, well outside the range of ongoing debates, are pro tanto mistaken.

Despite the superficial plausibility of Allan’s extrapolation, closer examination reveals scope for a compelling internal critique. To begin with, the substantive implications of Kantian freedom are far wider than those plausibly recognized as requirements of the Rule of Law, even under typical thick theories. For Arthur Ripstein, whose defense of Kantian freedom underpins Allan’s account,Footnote ¹⁷⁹ freedom does entail typical supplementary principles including an austere conception of equalityFootnote ¹⁸⁰ and protection of civil and political rights.Footnote ¹⁸¹ But the requirements of freedom extend much further than these relatively plausible Rule of Law principles. Kantian freedom additionally requires, inter alia, the establishment of public rights of way,Footnote ¹⁸² protection of public health,Footnote ¹⁸³ provision for national security,Footnote ¹⁸⁴ establishment of representative government,Footnote ¹⁸⁵ unassailable property rights,Footnote ¹⁸⁶ and laws prohibiting public beggingFootnote ¹⁸⁷ and solicitation.Footnote ¹⁸⁸ It also entails that it is straightforwardly illegitimate for states to act specifically for the purposes of reducing harm, promoting individual interests, or improving material equality.Footnote ¹⁸⁹ These various requirements and prohibitions all derive equally and inextricably from Kant’s monist and absolutist understanding of freedom.

A complete picture of the requirements of Kantian freedom helps formulate an internal critique of Allan’s thick theory. As we saw above,Footnote ¹⁹⁰ Allan contends, in effect, that deductive closure requires that the various ramifications of Kantian freedom must be recognized as principles of the Rule of Law. But we can turn the tables. If we pursue Allan’s logic to a deductive closure of its own, the Rule of Law would have to include every requirement of Kantian freedom, from rights of way to prohibitions on public begging and solicitation, to an absolute prohibition on state action directly pursuing material equality. If derivation from the value underpinning core principles justifies the inclusion of some of these requirements as supplementary principles, it pro tanto justifies the inclusion of all. Yet whereas the argument from deductive closure possessed a superficial plausibility when it seemed merely to entail commonly endorsed supplementary principles such as nondiscrimination and human rights, that superficial plausibility is shattered once the range of supplementary principles extends to encompass all the requirements of Kantian freedom. While a state which fails to prohibit solicitation or provide adequate public rights of way might be criticized, that criticism seems bizarre if articulated as a failure to uphold the Rule of Law. So, even accepting arguendo that Kantian freedom encapsulates the requirements of a legitimate state, it is far from obvious that all its demands should be understood as requirements of the Rule of Law. An unmodified Kantian approach leads to wildly counterintuitive conclusions about the concept’s breadth.

Kantian thick theorists have at least three possible responses to this challenge. First, they could dig in, contending that the Rule of Law does incorporate every ramification of Kantian freedom and therefore central intuitions about the breadth of the Rule of Law are mistaken. The difficulty with this response is that departures from central intuitions would be extensive, expanding the scope of the Rule of Law well beyond even the thickest of typical thick theories. Indeed, this approach unequivocally makes the Rule of Law coextensive with the requirements of a legitimate state; it is “a complete social philosophy,”Footnote ¹⁹¹ a characteristic which detracts not only from its intuitive plausibility but also its practical utility as an evaluative concept.Footnote ¹⁹² Moreover, this stance seemingly entails that all political concepts deriving from the value of freedom should have precisely the same, all-encompassing content. If the Rule of Law includes everything which cumulatively serves to secure freedom, it is difficult to see why other concepts which Kantians take to serve the value of freedom—democracy, separation of powers, and so on—should not also extend to that scope. While departures from intuitions can be justified in conceptual analysis, in this case the burden of justification is high: radical conceptual bloating must be shown to be preferable, especially when there is a plausible alternative (outlined below).

A second possible response contends that Ripstein’s account of the scope of Kantian freedom is mistaken. If the requirements of freedom were limited to things which are plausibly part of the Rule of Law—core principles, nondiscrimination, and human rights protection, for instance—it would be more plausible to maintain that the Rule of Law incorporates all such requirements. But it is difficult to see how an interpretation of Kantian freedom could be substantially narrower than Ripstein’s without fatally undermining Kantian political theory. Under the monist, Kantian approach, freedom is the sole source of political legitimacy: freedom alone delineates the scope and constraints on legitimate state action.Footnote ¹⁹³ Without abandoning this central plank of Kantian political thought, a narrower understanding of freedom would entail an implausibly narrow view of the scope of legitimate state action.

The third response concedes that the Rule of Law does not incorporate every implication of Kantian freedom, but instead corresponds to some subdivision of that ideal. This idea is not alien to Kantian political theory, since Kantians do articulate subdivisions of the requirements of freedom, both at a high level—between private and public right—and by describing specific concepts—separation of powers, representative government, property rights, and so on—as distinct, albeit connected requirements of freedom.Footnote ¹⁹⁴ However, if some subdivision is recognized as essential, the seeming inevitability of Kantian premises yielding a thick theory of the Rule of Law dissipates. Since we must exclude at least some of what is required by Kantian freedom from the scope of the concept, it is conceivable that the requirements we exclude will not be limited to those things which are egregiously counterintuitive. In other words, we might conclude that it is most coherent to limit a Kantian conception of the Rule of Law to core principles, thus constructing a thin conception from Kantian foundations. Whether the resultant theory is thin or thick, the challenge is to articulate a principled and coherent basis for subdivision; some rational grounds for distinguishing those requirements of Kantian freedom which form part of the Rule of Law from those which do not. The crucial question is how—if at all—the scope of the concept can be coherently restricted to a plausible breadth within a Kantian political-theoretical framework.

Let’s begin by assessing the prospects of justifying a typical thick theory under this approach. The specific challenge is to articulate a principled basis for collecting core and plausible supplementary principles under the umbrella of the Rule of Law, while excluding the other, less plausible requirements of Kantian freedom. As we have seen, it is not sufficient merely to show that plausible supplementary principles are required by Kantian freedom, since that argument opens the floodgates to less plausible principles and a conception of implausible breadth. It will not be straightforward for Kantians to justify the inclusion of plausible supplementary principles while excluding the myriad other requirements of freedom. First, it is not feasible to invoke any intuition in favor of including only the most plausible supplementary principles, since opponents can respond by pointing out that intuitions about the specific breadth of the Rule of Law are noncentral, so cannot be decisive. Second, thick theorists cannot contend that the Rule of Law covers only the most fundamental or most freedom-enhancing requirements since, under Kant’s monist approach, not only is freedom the only political value but all the requirements of freedom are equally fundamental and absolute.Footnote ¹⁹⁵ Judgments about which requirements of freedom matter most would require a thoroughly un-Kantian ranking of harms. Third, Kantians cannot contend that Rule of Law principles are unique insofar as they are distinctively central to the legal system or can only be secured through law, since other requirements of Kantian freedom, including rights of way, restrictions on begging and solicitation, and the establishment of representative government, can similarly be secured only through law.Footnote ¹⁹⁶ None of these options will succeed, then. Of course, some other rationale for isolating a thick conception of the Rule of Law on Kantian grounds might be found, but it is not obvious how it would do so.

Can a thin theory of the Rule of Law be derived coherently from Kantian foundations? We might contend that, while core and supplementary principles are all requirements of the right to freedom, they nevertheless protect freedom in different ways. Footnote ¹⁹⁷ In short, core principles primarily concern the manner or form through which freedom is protected, whereas supplementary principles concern the areas of individual freedom which must be secured. This distinction is commonplace in thin theories, but it is also latent in Allan’s account of the connections between the different types of Rule of Law principles and freedom.Footnote ¹⁹⁸ For Allan, core principles protect individuals from arbitrariness—and consequent diminution of individual freedom—by ensuring that systems of government do not create uncertainty and unpredictability through unfollowable or unreliably enforced laws.Footnote ¹⁹⁹ Nondiscrimination and human rights, by contrast, do not primarily secure freedom by rendering individuals’ lives more certain and predictable, but by protecting them against unjustifiable interference, thereby protecting individuals’ powers of self-determination over bodily integrity, property, and status.Footnote ²⁰⁰ While the justification for core and supplementary principles alike can ultimately be traced to freedom, the manner in which different principles protect freedom is distinctive. This distinction thus arguably grounds a coherent subdivision of the requirements of Kantian freedom, which would regard core principles as uniquely relevant to the Rule of Law. This thin conception of the Rule of Law and other concepts required by Kantian freedom would stand in “complex unity.”Footnote ²⁰¹ Each is distinct, but derives from and contributes to the same fundamental value.

This internal critique suggests that even (Kantian) value-monists have good reasons to be conceptual-pluralists. While Kantians would still trace the justification of distinct normative political concepts to a single overarching value, it is both possible and necessary to distinguish those concepts by the manner in which they secure or promote that value. It is possible, therefore, to justify a thin theory of the Rule of Law by drawing a distinction internal to the Kantian framework. There may be scope to dispute this subdivision of freedom and the thin theory of the Rule of Law it yields,Footnote ²⁰² but Kantian thick theorists must meet that challenge directly. Crucially, whatever further interventions this critique provokes, those debates should take place within a fully internal framework. To the extent that they do so, these debates will involve meaningful and productive engagement between rival positions.

C. Generalizing Internal Critique

Even if you’re with me so far, you might be wondering how well internal critique generalizes to other theories. I have shown how it might work in one case, but my initial claim was that internal critique is a generally productive methodology. To go some way toward substantiating that broader claim, I shall now sketch how internal critiques might be formulated against other prominent theories of the Rule of Law; theories specifically premised on cross-references to specific conceptions of law. Needless to say, these sketches are not fully developed arguments, but they support the prima facie plausibility of my claim about generalizability.

First, an expansionary critique of thin theories premised on a conception of law as distinctive form of governance through rules.Footnote ²⁰³ Some thin theorists claim that law’s essential, formal properties map onto core principles, which in turn promote certainty and predictability and explain the concept’s value.Footnote ²⁰⁴ It might be contended, however, that even law which possesses those formal properties is insufficient to adequately promote certainty and predictability; that for law to be predictable in complex modern legal systems it must also be substantively consistent. Footnote ²⁰⁵ Since legal subjects cannot internalize every legal rule,Footnote ²⁰⁶ the followability of law sometimes depends on the law’s content tessellating such that we can reliably predict what it requires, even when we are ignorant of the specific rules. If so, the principle of deductive closure points toward the Rule of Law, requiring substantive consistency in addition to the formal characteristics derived directly from the theorist’s conception of law. And in liberal democracies, substantive consistency practically requires law which consistently upholds liberal-democratic values including nondiscrimination and human rights. Although this critique takes us beyond the essential properties of law according to the cross-referenced conceptions of law, it can be sustained without abandoning those conceptions. We need not endorse the claim that legal validity is predicated on substantive moral merit,Footnote ²⁰⁷ since substantively unjust law can nevertheless be substantively consistent. Nor need we even endorse the proposition that legal validity depends on (amoral) substantive consistency, as long as we accept that valid law may nevertheless fail fully to comply with the Rule of Law. This critique is therefore internal: it suggests that deductive closure demands a modest expansion of some thin theories, without departing from their conceptual cross-references.Footnote ²⁰⁸

Second, take Dworkin, for whom the Rule of Law requires respect for rights, because rights are intrinsic to law.Footnote ²⁰⁹ This theory combines the intuition that the Rule of Law is connected to the concept of law with a conceptual cross-reference to a rights-based conception of law. Internal critique cannot problematize either of these premises, lest it collapse into implausibility or dissonance, respectively. But we might plausibly—and internally—problematize the implicit understanding of the nature of the connection between the concept of law and the Rule of Law. Dworkin’s theory assumes a symmetrical connection: everything which is part of the former is part of the latter. But perhaps we should prefer an asymmetrical connection: regarding the Rule of Law as picking out only some features of law, since a conception of the Rule of Law containing every substantive implication of Dworkin’s conception of law risks being counterintuitively broad.Footnote ²¹⁰ The plausibility of this critique is burnished by the fact that it advocates for a position adopted by some other nonpositivists, for whom the Rule of Law captures a distinct subset of the broad and varied moral contributions law secures.Footnote ²¹¹ And, crucially, it is not premised on the rejection of Dworkin’s conceptual cross-references, but targets the coherence and plausibility of the extrapolation: it is internal.

These sketches point to ways in which internal critique might generalize. In both cases, the critique problematizes an arguably unjustified assumption that one’s theory of the Rule of Law should symmetrically reflect one’s cross-referenced conception of lawFootnote ²¹²—in the first case by arguing that coherence requires the Rule of Law to go beyond the cross-referenced conception of law, while remaining faithful to it; in the second case by arguing that intuitive plausibility might provide reasons to understand the Rule of Law more narrowly than the cross-referenced conception of law. Nothing turns on the likelihood of these arguments persuading proponents of these theories to change their minds: as with the critique of Allan’s Kantian theory, what matters is that the arguments contribute to our understanding by presenting meaningful challenges; challenges which proponents of these theories should take seriously. I think these critiques satisfy that burden: assuming they are superficially plausible, they should stimulate a more sophisticated and internal debate over the best way to conceive the connection between the concept and the Rule of Law. That would count as philosophical progress.