1.2.1 Political or Legal – or Both?

Perhaps the most important thing to understand about the idea of the rule of law is that it straddles political and legal thought.Footnote ² The idea has always had these two dimensions, and it always will.

In its political dimension, the rule of law is concerned with a particular way of arranging political power, namely: that such power should be framed by, exercised through, and answerable to law. The basic idea is that both sides of the political relationship – the rulers and the ruled, the government and the governed – must each be subordinate to the demands of the law. Throughout this Element we will refer to this basic idea as the political demand of mutual subordination to law. The legal dimension of the rule of law follows readily from its political dimension in its concern for how the demand of mutual subordination to law is met. The focus here is on how the institutions and practices of a legal system constitute, express, and sustain that political demand.

Our primary concern in this Element accordingly lies with how the rule of law is thought to frame political rather than interpersonal relationships, that is, relationships between ruler and ruled, or government and governed, rather than those between and among persons generally.Footnote ³ The political–legal mix represented in the idea of the rule of law can produce some interesting differences between how it is approached by scholars of political and legal thought, respectively. Those who approach the idea from the starting point of legal thought often take its political demands as given and concentrate instead on the granular details of how those demands might manifest in actual legal arrangements. Conversely, those who approach the rule of law from the starting point of political thought often play down the significance of those granular details to the fate of its claimed connections to liberty (Section 2.2.2) or other core concerns of political theory. Neither approach is necessarily wrong. Both are however necessarily incomplete. The best counsel for those approaching the rule of law, therefore, is always to keep in mind that the idea has both political and legal dimensions, and that one or other of those dimensions (more often than both) might be pushed to the foreground within any particular engagement with it.

1.2.2 ‘Arbitrary’ Power

Fear of tyrants and of tyranny has always been central to claims about the functions or purposes of the rule of law. This explains much about why, for centuries, we have been invited to understand the idea by reference to its apparent opposition to the rule of man, or men.Footnote ⁴ More often, however, the historical core of rule of law thought has been associated with a much more specific ‘anti-hero’ (Reference KrygierKrygier, 2019: 761): the possibility of arbitrary power or rule.

‘Arbitrary power’ is an idea in its own right, and scholars of the rule of law have devoted considerable effort to reflecting on its possible meanings.Footnote ⁵ At its simplest, the idea speaks to patterns in the exercise of power that cannot be anticipated by those who are subject to it. The worry here is primarily about unpredictability, from the point of view of the person subject to power so exercised. But being also about power, the term ‘arbitrary power’ equally communicates something important about to subjection to the whims of another, in the mode of untrammelled domination.

The question for our preliminary purposes is what an emphasis on arbitrary power within a particular theoretical engagement with the rule of law might indicate about how the latter is being perceived. Here we might especially notice the typical connection between a concern for arbitrary power and ‘negative’ conceptions of the rule of law. That is, if the purpose of the rule of law is understood to be prevention of or protection from arbitrary rule, it is easy to see the link between this understanding and the dominant orthodoxy of rule of law thought that associates the idea with freedom from the encroachments of political power.

This does not mean, however, that understandings of the rule of law that locate arbitrary power at their centre are incompatible with more positive framings of the idea. One recent engagement that maintains an emphasis on arbitrary power, for example, argues for an association between the rule of law and a way of acting ‘with a manifest intention to protect and advance the interests of the governed’ (Reference RazRaz, 2019: 13). The point is simply that the directions of thought opened up by the traditional emphasis of rule of law theory on arbitrary power are not necessarily settled. At the same time, that emphasis is very likely to shape – in often significant ways – the next level of claims about what the rule of law is or requires.Footnote ⁶

1.2.3 ‘Rule of Law’ versus ‘Rule by Law’

One of the distinctions to which scholarship on the rule of law returns repeatedly is the asserted difference between rule by law and the rule of law. Both ideas refer to political orders in which law is given a central role in the project of government. So, what is the idea of the rule of law doing that rule by law is not?

We might begin to unpack the claimed difference between these two types of law-based political rule by reflecting on the message conveyed by their ‘of’ and ‘by’, respectively. The key point here concerns the direction of legal obligations. Rule by law says nothing about the legal obligations of the ruler, beyond the need to comply with the formal strictures necessary to govern through law. This is why the term is generally associated with a type of political rule in which law is a tool with which government can do as it pleases (Reference TamanahaTamanaha, 2004: 96; Reference WaldronWaldron, 2016: 4), and why it is often used in connection with what are sometimes described as ‘authoritarian’ political regimes (Reference Ginsburg and MoustafaGinsburg & Moustafa, 2008; Reference RajahRajah, 2014: 4; Reference SeppänenSeppänen, 2016). The message conveyed by the rule of law, by contrast, is that the obligations of law apply equally to both ruler and ruled. Both are mutually subordinate to the demands of law.

The rule of law/rule by law distinction is not merely an evaluative device for assessing whether a given political order is best described in terms of one or the other. The distinction – roughly – also describes the historical difference between the kind of political rule that emerged through English traditions of government, and that associated with the European tradition of the Rechtsstaat (law state). In this historically situated version of the distinction, law in the rule of law tradition acts primarily as a constraint on political power, while law in the Rechtsstaat (rule by law) tradition acts primarily as its conduit or means of rule (Reference Meierhenrich, Meierhenrich and LoughlinMeierhenrich, 2021: 57). The shorthand ‘Lex, Rex’ neatly captures this difference.Footnote ⁷ In the rule of law tradition, ‘Lex’ (law) is prior to ‘Rex’ (the sovereign) because the sovereign must govern through and be answerable to law. In the Rechtsstaat tradition, by contrast, ‘Rex’ (the sovereign) comes before ‘Lex’ (law) because law is the sovereign’s instrument of rule.

Yet like all distinctions, this one is bound, if not to break down then at least to lead a complex life. In practice, most political orders will reside somewhere on a spectrum between the rule of law and rule by law, generally or in relation to specific instances of governance. But there is also a philosophical objection to the distinction. Even if in a political order best described as one of rule by law those in power want to use law as nothing more than a tool through which to wield that power, it is not just any kind of tool. It is law, and it can only be law if it complies with the demands that make law a distinctive tool of governance. Thus, this objection asks: are these demands not themselves a distinctly legal constraint (even) on those who seek to use law as no more than a tool of power? The point is that even if these demands of legality might not be so strong as to make all instances of legal governance instances of the rule of law rather than rule by law, the better approach might be to position the two along a continuum of legal constraints on political power, rather than as polar opposites (Reference DyzenhausDyzenhaus, 2022).

1.2.4 Idea or Ideal?

It is common across contemporary theoretical approaches to the rule of law to see it described as an ‘ideal’. Sometimes this point is taken further, with the rule of law positioned as only one ideal among others that a given political order might strive to meet: democracy, respect for human rights, and economic freedom are often cited as examples (Reference RazRaz, 1979: 210–11; Reference WaldronWaldron, 2016: 1). What we need to grasp for preliminary purposes is what describing the rule of law as an ‘ideal’ tells us about the kind of idea it is thought to be.Footnote ⁸

An ideal is a normative idea: a projection about how things should be, rather than about how they are as a matter of fact. Designating the rule of law as an ‘ideal’ is a way of saying that it is not a thing, like a chair, or a dog. Rather, it is an aspiration, or a goal – something we must work to (try to) achieve. It is widely accepted that, despite its importance, the rule of law rarely will be fully realised in practice. Just how far practice can depart from the demands of the rule of law and still lay claim to being an instance of it, however, is a significant point of dispute among theorists of the idea. The point for immediate purposes is simply that whether the rule of law can be said to be present will always require evaluation, by whatever measures are designated as relevant to that evaluation.

There are also other implications for theorising the rule of law that arise from its status as an ideal. Starting from the assumption that the rule of law is an aspiration, for example, might encourage us to abstract it from time and place. It is precisely this kind of theoretical idealism that has seen some scholars call for greater historical sensitivity within theories of the rule of law, explicitly (re)locating the idea within the specific political and legal conditions that inform different theories about it (Reference Shklar, Hutchinson and MonahanShklar, 1987).

1.2.5 An ‘Essentially Contested Concept’

It is in the nature of normative ideas that their meaning is contested and contestable. It is hard to think how it could be otherwise: aspirations are worth aspiring to for different reasons to different people. There accordingly will never be complete agreement on what the rule of law is, what exactly it demands, or why it matters. This is why it is commonly described as an ‘essentially contested concept’.

There can be confusion about what exactly this label means. An essentially contested concept is something much richer and more complex than an idea whose meaning is hard to agree upon. In its proper philosophical usage, an essentially contested concept is a theoretical designation that draws attention to ‘the way in which arguments about the meaning of a given concept contribute to our understanding and evaluation of the systems, practices, and actions to which the concept is applied’ (Reference Waldron, Meierhenrich and LoughlinWaldron, 2021: 121). In relation to the rule of law specifically, therefore, the designation of essentially contested concept is a way of showing ‘how the heritage of disputation associated with it enriches and promotes some or all of the purposes for which the rule of law is cited in legal and political argument’ (Reference Waldron, Meierhenrich and LoughlinWaldron, 2021: 122).Footnote ⁹

The key point about the rule of law as an essentially contested concept, then, is that to approach it is to expect disagreement about its meaning, content, benefits, burdens, and much besides. Although this inevitably means that working with the idea can be challenging, the designation ‘essentially contested concept’ is not meant to discourage us from doing so on the basis that we will never entirely win the argument. Quite the opposite, properly understood, that designation invites us to walk towards the idea of the rule of law with openness towards its possible content and application in a given circumstance, fully aware that others may have different views, but undeterred by any of those things. Indeed, some have suggested that the inherent lack of agreement about the content of normative ideas like the rule of law can be a source of their strength, insofar as their contestability might unite people in supporting the idea in principle even if they cannot agree on precisely what it is meant to designate (Reference RazRaz, 2019: 3).

1.2.6 ‘Theories Of’ or ‘Theoretical Engagements With’?

Writings on the rule of law are often grouped together as if there is no difference between those we might label theories of the rule of law and those that might better be described as theoretical engagements with the idea. To some extent this may be right. In this Element, however, where relevant, one description is used rather than the other to point out how scholars have different ways of and different reasons for working with the idea. However imperfect the distinction might be, labelling a particular theoretical treatment of the rule of law one way or the other is a way of drawing attention to what is going on within an encounter with it.

Our focus in the remainder of this first part is primarily on theories of the rule of law: writings that purposefully set out to offer an account, definition, or statement of the rule of law as an object of inquiry in its own right. Elsewhere in the Element, and especially in our examination of the entanglements within which the idea is often situated, the themes and works examined might better be described as theoretical engagements with, rather than theories of, the rule of law.Footnote ¹⁰

The key takeaways of this brief survey of recurrent themes of rule of law thought might be summarised as follows. The rule of law is an idea whose meaning is and will always be contested, which is often understood as much in terms of what it is not as what it is, and which, being aspirational in character, might never be fully realised in practice. Its historical lineage is associated with the particular role assigned to law in English rather than European traditions of political rule, and as a subject of theoretical treatment it is sometimes the object of inquiry and at other times merely part of it. Our task now is to become acquainted with how the rule of law tends to be approached when positioned as the object of inquiry in its own right.

1.3.1 An Account of What, Exactly?

But what is the character of the listed features said to be necessary in a given account of the rule of law? The elements that comprise accounts of the rule of law may go by a number of different names, including ‘desiderata’, ‘demands’, or ‘requirements’. The most common description of such listed features is, however, that they are an account of the ‘principles’ of the rule of law.

The first thing to notice in the work of those engaged in this activity is that such scholars will usually offer no more than a tentative answer to what the phrase ‘the rule of law’ means. Energies are instead directed to articulating the content of its necessary principles. What those principles are thought to do, however, is generally clear. To borrow from the fourth vignette reproduced at the beginning of this part, together the principles of the rule of law are thought to ‘constrain the way government actions change and apply the law’. But what kinds of principles are these necessary principles of the rule of law?

This is where three familiar descriptions of rule of law theory – ‘formal’, ‘procedural’, and ‘substantive’ – enter the picture (Reference TamanahaTamanaha, 2004: 91–113; Reference CraigCraig, 1997; Reference WaldronWaldron, 2016: 5). Because one of the most contested aspects of rule of law theory is what place is to be accorded to each of these three categories in an account of its principles, it is important to understand the claimed differences between them.

The formal principles said to be necessary for the rule of law relate to the form that law, in a rule of law order, should take. Demands of generality, clarity, and publicity, among others, are formal principles in this sense because they speak to the required form of legal norms within a condition that lays claim to the rule of law. These formal principles tend to comprise a common foundation across different accounts, and rarely provoke controversy. It is what else an account of the rule of law should include that generates contestation.

The procedural principles thought by some to be required for the rule of law concern the processes and institutions through which legal norms are administered. Examples of such processes include requirements of natural justice or fair hearing, and the principle of innocence until proven guilty. Examples of institutions include the expectation that there will be courts, presided over by independent and impartial judges.Footnote ¹²

The point of departure between formal and procedural principles, on the one hand, and substantive principles, on the other, is that the latter concern the content (‘substance’) of law in a system that lays claim to the rule of law. Only some theorists insist that substantive principles should be among those that comprise an account of the rule of law, in addition to formal or procedural principles. A classic substantive demand in contemporary rule of law theories is that the rule of law must include a commitment to the protection of human rights: a demand on the content of the law, not on its form or the procedures for its administration.

1.3.2 Examining Some Accounts

The common (if somewhat disparaging) description of accounts of the principles of rule of law as ‘laundry lists’ suggests that one might tick off each principle to determine whether a condition of the rule of law exists or does not exist. The purpose of reproducing three of the most well known here is not to pass judgement on their merits, but simply to notice their style, shape, and recurrent and divergent preoccupations.

1.5.1 A Rule of Law Theory for (English) Constitutionalism

Those who come to the idea of the rule of law through the study of constitutional law are likely to be familiar with the second vignette reproduced at the commencement of this part. This oft-cited ‘theory of’ the rule of law belongs to the work of Albert Venn Dicey, the nineteenth-century theorist of the English constitution who is widely credited with popularising the term ‘the rule of law’ (Reference WaltersWalters, 2020: 227–8). Three elements, or demands, are associated with it. The first is the demand that government proceed through a framework of legal norms and procedures rather than through unconstrained discretion. The second is the demand of equality between government officials and private individuals before the same ordinary law and the same ordinary courts.Footnote ²³ The third is the establishment and protection of individual rights through the development of the judge-made common law (Reference WaltersWalters, 2020: 228–30).

These three demands are frequently positioned as the starting point for understanding the meaning of the rule of law as an element of constitutionalism within the English tradition of constitutional thought and practice (Reference BarberBarber, 2018: 85–119). For our purposes, however, the point to notice is the specific context of those three demands (English constitutional practice as it stood in Dicey’s time) and the specific motivation for articulating them (Dicey’s desire to protect that constitutional system from decay). When this context is understood, it is clear that Dicey could not have intended his theory to be a general theory of the rule of law applicable to all times, places, and people – even if some of its demands, such as the equality of government officials and private individuals before the ordinary law – appear to be generalisable (Reference Walters, Meierhenrich and LoughlinWalters, 2021: 153–4).

Nonetheless, Dicey’s theory of the rule of law has taken root in a range of contexts beyond that into which it was born and towards which it was aimed – to the strong lament of some.Footnote ²⁴ Indeed, leading Dicey scholar Reference Walters, Meierhenrich and LoughlinMark Walters (2021: 161) has suggested that the view of English society informing Dicey’s thinking on the rule of law was an ‘imaginary country’ even in Dicey’s own time. A much more extensive role for government – and thus also for legislated law as its mode of rule – had already begun to emerge through what came to be known as the ‘administrative state’.

We need this last piece of context to understand the normative impulse behind this particular theory of the rule of law. Dicey ‘bemoaned what he saw as a decline in respect for the Rule of Law in England’, and was particularly troubled by the development in neighbouring France of a specific body of administrative law to regulate the actions of public officials (Reference WaldronWaldron, 2016: 3.4). His famous objection to administrative discretion – to which we return in Section 3.2.2 – belongs here. As his equality demand makes clear, to Dicey’s mind the rule of law (in England) required that public officials and private individuals be subject to the same general laws and have their causes adjudicated in the same courts. When combined with his preoccupation with ‘the security given under the English constitution to the rights of individuals’ (Reference WaltersWalters, 2020: 230), it is not difficult to see why Dicey’s theory of the rule of law is regarded as a leading example of a negative conception of the rule of law specifically concerned with protecting private rights from the encroachments of government through the development of judge-made common law. We return to these ideas at multiple points in Part 2.

1.5.2 A Rule of Law Theory to Support Spontaneous Order

The third vignette with which we commenced this part is taken from (the first iteration of) Friedrich Hayek’s theory of the rule of law. The similarities between that vignette and its neighbour, taken from Dicey, are hardly accidental: Hayek’s embrace of the English (Lex, Rex) rule of law tradition was a reaction to and rejection of the logic of his native (Rex, Lex) Rechtsstaat tradition (Section 1.2.3). Because Hayek ultimately developed aspects of his thinking on the rule of law on three occasions,Footnote ²⁵ pinning down his theory of the rule of law can be difficult beyond noticing his consistent preoccupation with five interconnected ideas.

The first is a negative conception of liberty, in the sense of freedom from the encroachments of government. The second is a preoccupation with ‘spontaneous order’, the implicit patterns of conduct that arise when individuals interact freely with each other, as compared to when their conduct is managed or coerced by government. The third is an emphasis on law as a framework of general and generally applicable rules that (at most) adjust rather than order these private interactions. The fourth is faith in the market as the crucial mechanism for the production of this spontaneous order. The fifth is an emphasis on courts and judges as the guardians of this spontaneous order through the incremental case-by-case method of the English the common law tradition (Section 2.4).Footnote ²⁶

The interactions between these five connected ideas in Hayek’s thought can be complex,Footnote ²⁷ and this complexity can be amplified by the often-polemical tone of his work as well as the theory of knowledge ultimately underscoring it. But with respect to what Hayek thought the rule of law should do – its function – one theme is recurrent. Even if some interference by government in the lives of individuals is inevitable,Footnote ²⁸ the task of the rule of law is to provide the framework within which ‘an individual can foresee the action of the state and make use of this knowledge as a datum in forming his own plans’ (Reference HayekHayek, 2007: 118).

As we also saw for Dicey, it is not possible to understand Hayek’s thinking on the rule of law, in whichever iteration, without appreciating the historical and political context in which it was initially developed. Published in 1944, Hayek’s most polemical work and the home of our third vignette, The Road to Serfdom, was a plea to not continue into peacetime the kind of economic planning that had increased the coercive role of government in the lives of individuals during wartime. Hayek’s avowed opposition to the ‘welfare state’ in turn explains the close association that developed between his thought and the political philosophy of ‘neoliberalism’ that sees the role of government primarily in terms of facilitating conditions in which the market can take root as the central organising mechanism of social and political order (Section 2.6.1). Indeed, as Reference Shklar, Hutchinson and MonahanShklar (1987: 9) described it, Hayek’s rule of law ‘does far more than to make the citizen feel secure from the agents of coercive government’: it was designed to sustain that ‘spontaneous order’ – the free market economy – that Hayek positioned as the foundation of all other aspects of society.

We return to the significance of the battle between neoliberalism and the welfare state to contemporary rule of law thought and practice in Section 2.6.1. The point for now is simply that Hayek’s rule of law thought is not only a prime example of a ‘theory within a theory’ but also an optimal illustration of the importance of the context if we are to understand why a given theory of the rule of law has the content and carries the associations that it does.Footnote ²⁹

1.7.1 Dichotomies

The much-rehearsed distinction between ‘formal’ versus ‘substantive’, or ‘thin’ versus ‘thick’ theories of the rule of law has been for many years the ‘go to’ way of distinguishing one kind of rule of law theory from another. Both versions of the same distinction operate upon one particular feature of those theories: the demands that they make, or do not make, on the content of legal norms produced in purported compliance with the rule of law.

As we learned earlier (Section 1.3.1), a ‘formal’ rule of law theory only makes demands on the form that legal norms in a rule of law order must take. A ‘substantive’ theory of the rule of law is one that also includes demands on the substance, or content, of those legal norms. So understood, we can readily see the problem with situating the two within the binary of a dichotomy. Rather than being strictly opposed, a substantive theory of the rule of law might better be understood as a ‘formal+’ theory that takes a formal conception of the rule of law as its starting point, but then adds extra demands. As Reference WestermanPauline Westerman (2018: 141) has playfully described it, ‘[o]ne has to be thin in order to grow thick!’

The ‘formal’ versus ‘substantive’, or ‘thin’ versus ‘thick’ distinction is arguably the most well-worn dichotomy around which theories of the rule of law are organised because of the ease with which it can attach to the dominant method for theorising the rule of law: the provision of an account of its essential principles or features. As we saw in Section 1.3.2, the laundry list format helps to lay bare the formal, procedural and substantive characteristics of the principles claimed to be necessary to the rule of law. Yet as we also have seen, not all theories of the rule of law take the shape of a list, even if some are often absorbed into the received formal versus substantive binary regardless. Dicey’s theory of the rule of law, for example, is often retrofitted into a formal theory, despite reservations from those most familiar with his project (Reference LinoLino, 2018: 744; Reference WaltersWalters, 2020: 234–45).

There are of course other ways in which the field of rule of law theory might be dichotomised. One recent example is an effort to map theories of the rule of law according to their explicit or implicit embrace of an idea of ‘law as will’ versus an idea of ‘law as artificial reason’ (Reference St-Hilaire and BaronSt-Hilaire & Baron, 2019). The point to notice for present purposes is how this particular way of organising the field initiates engagement with an arguably wider range of works than might customarily be included in a formal versus substantive / thick versus thin organisation, precisely because it is not principally concerned with theoretical engagements directed to uncovering the necessary features of the rule of law.Footnote ³⁵

1.7.2 Taxonomies

The move towards more complex taxonomies through which to map theoretical scholarship on the rule of law might be the strongest sign that dichotomies of kind just reviewed may no longer be sufficiently serviceable to a field that has outgrown their binary parameters. Taxonomies of rule of law theory remain an exercise in distinguishing different types of theoretical endeavour from each other, but with a view to drawing distinctions rather than oppositions.

One illustration is that recently offered by Reference Lacey, Meierhenrich and LoughlinNicola Lacey (2021: 458–73) in her analysis of the rule of law and populism.Footnote ³⁶ The point for present purposes is to notice why a taxonomical exercise was undertaken for an analysis of that kind. When a scholar seeks to engage one idea (such as the rule of law) with another (such as populism) the meaning of both needs to be clarified in order for any such engagement to be possible. In her effort to do precisely that clarificatory ground clearing on the rule of law side, Reference Lacey, Meierhenrich and LoughlinLacey (2021: 460–2) suggests that contemporary theoretical scholarship on the rule of law might be organised into four basic categories: formal/thin approaches, procedural approaches, substantive/thick approaches, and teleological/functional approaches.

The matter of interest for our purposes is not whether this is the right way to build a taxonomy of contemporary rule of law theory. The point is simply to notice how each category in this (or any other) taxonomy must attach itself to some feature of a particular theoretical approach that distinguishes it from others. Sometimes that feature will be the method through which a particular theoretical treatment of the rule of law is pursued, on other occasions the character of its content, and on other occasions something else again.

2.2.1 Packaging the Goods

Most engagements with the rule of law commence from the premise that it is a good thing, or at least that it does something good. The reason for this assumption goes back to the point emphasised at the beginning of Part 1. The rule of law is a particular way of organising political power, and one that has long been thought to protect against problems of tyranny and arbitrariness (Section 1.2.2). In its association with this protective or preventative contribution, the rule of law has long held a reputation for being a good thing.

As a subject of theoretical analysis, however, what the rule of law is thought to be good for is a separate question to what is thought to be good about it. Analytic philosophers cast this as a distinction between instrumental and intrinsic value. Arguments about the instrumental value of the rule of law concern its value to the achievement of some external end. We became acquainted with this kind of argument when we examined how philosophers of legal positivism defend a distinction between the concept of the rule of law and the concept of law as part of defending their foundational claim (the separability thesis) that there is no necessary connection between law and morality (Section 1.6). We can now see why an instrumental argument about what the rule of law is good for is so compatible with this enterprise. When Joseph Reference RazRaz (1979: 225) argued that the rule of law is to law what sharpness is to a knife, its good-making quality, his point was that sharpness is the good-making quality of a knife regardless of whether the knife is used for good or bad ends. The same, Raz argued, applies to the rule of law as the good-making quality of law. It is an instrumental good, irrespective of whether legal ends supported by its observance are good or bad.

Instrumental arguments about the rule of law’s contributions also abound in practice. For example, the United Nations’ working definition of the rule of law makes a range of instrumental arguments about its contribution to various desirable states of affairs. There the rule of law is described as fundamental to ‘international peace and security and political stability’, achieving ‘economic and social progress and development’, the protection of ‘people’s rights and fundamental freedoms’, as well as foundational to ‘people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state’ (United Nations Secretary-General, 2004: 4).

Arguments about what is good about the rule of law are concerned with its intrinsic value: the good(s) thought to be inherent to the rule of law, as such. Arguments in this vein might include the claim that the rule of law is inherently compatible with the possession and experience of liberty (Section 2.2.2), or that legal procedures typically associated with the rule of law, such as the right to a fair trial, foster respect for dignity (Section 2.5.2). The idea behind such claims about intrinsic value is that to have the rule of law is to have these goods, as if the two simply come together.

The line between arguments about instrumental versus intrinsic value can sometimes be hard to draw clearly. The familiar claim that observance of the rule of law contributes to the legitimacy of political rule (Section 2.2.3) for example, could plausibly be classified as either an instrumental argument about what the rule of law is good for, or as an argument about what is intrinsically good about it. For the less philosophically initiated, simply identifying that a particular theoretical engagement with the rule of law (or part thereof) is concerned with the contribution(s) of the rule of law is likely to be more important than determining whether the relevant analysis is best classified as concerned with its instrumental or intrinsic value. Indeed, because much of rule of law thought simply takes it as given that the rule of law is a good thing, the more likely focus of engagements oriented to the contributions of the rule of law will be with why we should value it.Footnote ⁴¹ Two examples help to illustrate.

2.2.2 Liberty

The term ‘liberty is generally understood to denote the particular species of freedom that is possessed and experienced within a political order.Footnote ⁴² The question of how to foster conditions for liberty has always been the central preoccupation of inquiry into the political dimensions of the rule of law. Indeed, it is generally safe to assume that all theoretical engagements with the rule of law have at least some concern, explicitly or implicitly, for its asserted contribution to liberty.

What kind of liberty is associated with observance of the rule of law is, however, another question (Reference AllanAllan, 2013: 89). As we emphasised in Part 1 (Sections 1.1 and 1.2.2), the dominant orthodoxy of rule of law thought is cast in negative terms. A particular perspective on liberty is central to this orthodoxy: liberty is that which subjects of the rule of law possess, and experience, in the spaces where law is not.Footnote ⁴³ There are however more positive ways of thinking about liberty in relation to the rule of law, and which open up the potential for a connection with the presence rather than the absence of law. We return to these arguments in Section 2.6.

In our treatment of the claimed distinction between the rule of law and rule by law (Section 1.2.3), we noted that something of great import must consist in the ‘of’ of the rule of law that is absent in the ‘by’ of rule by law. That difference was explained in terms of the direction of legal obligations: it is only the rule of law that is associated with an idea of reciprocal constraint, where ruler and ruled alike are mutually subordinate to law. But on its own, this demand of mutual subordination tells us little about how the rule of law contributes to the liberty of subjects within a political order so committed.

Theorists of the rule of law disagree on this point, but for present purposes, we can learn from an example of how a conception of liberty informs larger arguments of political thought within which the rule of law is assigned an important place. The twentieth-century political philosopher, Reference RawlsJohn Rawls (1971), positioned liberty at the centre of his development and defence of principles of distributive justice. To do so, however, he needed to explain what idea of liberty he had in mind. Reference RawlsRawls (1971: 239) articulated an idea of liberty as ‘a complex of rights and duties defined by institutions’, and argued that the rule of law contributes to liberty so understood through how its ‘regularities’ (the security of knowing what to expect of those who make and enforce rules) create ‘the boundaries of men’s liberties’ (Reference RawlsRawls, 1971: 235, 239). Rawls then further contended that the rule of law makes this specific contribution to liberty through formal precepts, which he called ‘justice as regularity’, that concern ‘the impartial and regular administration of rules’ (Reference Rawls1971: 235, 236).

This is just one set of interconnected arguments that articulate a worked-out view about the contribution of the rule of law to liberty. What matters for our purposes, above all, is simply to be aware that just as there will always be a conception of law in play or at stake in a given theory of the rule of law (Section 1.6), there will also always be a conception of liberty in play or at stake within any discussion of the claimed contribution of the rule of law to this most exalted of human ends.

2.2.3 Legitimacy

Bound up with its claimed contributions to fostering conditions for liberty is the association between the rule of law and the legitimacy of political rule. We again need to return to the rule of law’s political demand of mutual subordination to law to understand why.

Put at its simplest, the legitimacy argument has two limbs. The first is that the commitment of the ruler (and not just the ruled) to being governed by law is a way of showing respect for the ruled as autonomous individuals who have an interest in their liberty. The second limb of the argument is that, because of this commitment and the respect for liberty it entails, those ruled within a political order committed to the rule of law are more likely to regard such rule as legitimate. They are more likely to accept its authority over them.

The question of legitimacy is thus centrally concerned with why political authority can be acceptable to and accepted by those who are subject to it, from their perspective.Footnote ⁴⁴ We can again gain insight into this dimension of rule of law thought by returning to the claimed distinction between the rule of law and rule by law (Section 1.2.3). The reason why the rule of law is thought to contribute to the perceived legitimacy of political rule conducted this way is because it is thought to offer something more to those subject to such rule than bare legality understood as power authorised through the instrument of law (Reference DyzenhausDyzenhaus, 2022: 88–148). We can now see how the question of what this ‘something more’ is loops us back to arguments about the contribution of the rule of law to liberty. But, having arrived back there, we return to the question of what kind of liberty it is, and how it comes to manifest.

On this point we can gain illumination from the more sophisticated and historically situated distinction between the rule of law and Rechtsstaat political traditions. As we learned in Section 1.2.3, law is assigned a different role within each: in the rule of law, tradition law is understood as a constraint on political power (Lex, Rex), while in the Rechtsstaat tradition law is understood as a conduit of political power (Rex, Lex). The point of interest for present purposes is how the different role assigned to law within each travels alongside a distinction between individual and political liberty and the relationship between them. In the Rechtsstaat tradition, political liberty – the liberty to participate in politics and thus to influence the values of a political order – is considered prior to individual liberty. On this view, individual liberty is thought best secured by first securing political liberty. In the rule of law tradition, the relationship runs in the other direction. Consistent with the idea that individual liberty is to be found in the spaces where law is not, the suggestion is that we need to secure conditions for individual liberty before we can secure political liberty. Meierhenrich’s observation that the key difference between the Rechtsstaat (European) tradition and the rule of law (English) tradition ‘has to do with the question of where the rights of individuals originate’ is apposite. So too is his observation that the rule of law tradition has long been preoccupied with the legitimacy of law in ways that the Rechtsstaat tradition has not (Reference Meierhenrich, Meierhenrich and LoughlinMeierhenrich, 2021: 62, 64).

The key takeaway is accordingly this. If we understand individual liberty as the political endgame of the rule of law tradition, it follows that the legitimacy of any arrangement of political rule that lays claim to the rule of law must demonstrate how it is consistent with the individual liberty of those who are subject to it.

2.3.1 The Stakes of Companionship

We noted in Part 1 that those who analyse the rule of law as a ‘concept’ seek to draw sharp distinctions between it and other concepts (Section 1.3). The aim, in essence, is to ensure that the rule of law and nothing but the rule of law is the object of analysis.

No one did more for this analytical cause than the philosopher Joseph Raz. In his first renowned analysis of the rule of law (Reference RazRaz, 1979: 211), Raz argued that it ‘is just one of the virtues that a legal system might possess and by which it might be judged’, and ‘is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man’. Putting the objection at its strongest, Reference RazRaz (1979: 211) insisted that ‘if the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy’.

Reference RazRaz (2019) elaborated this objection further in his last philosophical engagement with the rule of law, but in that instance with his eye on the common companionship between the rule of law and human rights specifically. The provocation to do so came from the writings of Reference BinghamTom Bingham (2010), the late British judge renowned for giving human rights protections a central place within his thinking on the rule of law. We encountered both Raz’s and Bingham’s accounts of the principles of the rule of law in Section 1.3.2, in association with formal and substantive conceptions of the rule of law, respectively. The point presently is that Reference BinghamBingham (2010: 67) advocated for a close companionship between the rule of law and human rights on the basis either that the two share essentially the same rationale, or are otherwise inseparable in practice.

Raz’s response to Bingham offers a helpful prism through which to reflect on the stakes of encouraging or discouraging close companionship between the rule of law and other ostensibly compatible ideals or practices. In Raz’s view nothing was achieved ‘and much is lost’ by simply grouping such ideals and practices together ‘as though they share a rationale or are of similar importance, or are otherwise alike’. Clarity in theory and practice, he insisted, ‘is achieved in recognising their diversity’ (Reference RazRaz, 2019: 10). The worry here is not just about analytical precision. As Jeremy Waldron has put the point, if the rule of law is used as ‘a general stand-in for everything good one could ever want from a political system’, we might lose sight of what is at stake in different legal and political goals, values, and tools (Reference Waldron, Meierhenrich and LoughlinWaldron, 2021: 124). We can thus see the connections between a concern for the stakes of such companionships and the contributions, or goods, of the rule of law (Section 2.2).

Like all contests of rule of law thought, this one ultimately comes down to argument. What matters for the newcomer is simply to notice when companionships of this kind are in play, and to reflect on how and why they might shape the understanding of the rule of law presented in the relevant analysis. Our next discussion demonstrates just how varied these influences can be.

2.3.2 Companions on a Mission

Placing the rule of law in close companionship with other ideas is now such a common practice that, beyond academic writings, it is rare to see our protagonist travelling alone. This is especially so in the work of international organisations engaged in the work of international rule of law promotion (Reference Chalmers, Pahuja, Meierhenrich and LoughlinChalmers & Pahuja, 2021; Reference Humphreys, Meierhenrich and LoughlinHumphreys, 2021: 476), though this is by no means the only setting. Everywhere we see the rule of law assigned a place among other ostensibly laudable goals or urgent needs, from the protection of human rights to the attainment of global peace and much besides.

Such companionships are now so ubiquitous that they are sometimes assigned the label ‘rule of law discourse’. This is instructive. If the rule of law is only one idea among several within such discourse, why is it given the leading role? And why has this discourse developed anyway? Answering these questions demands inquiry into how and in what ways assigning the rule of law that role contributes to the justificatory dimensions of political practices associated with it. The rule of law’s reputation for being a good thing (Section 2.2) is surely a big part of this picture. But as we take further elsewhere (Sections 2.5.2, 3.4.1, and 3.5), good for what, or for whom?

Our aim here is not to pass judgement on whether the discursive companionships contained within different instances of rule of law discourse are right or wrong in their content or assembly, but rather simply to encourage attention to how these companionships work, and to the work they appear to be doing. One especially generative example is the ‘Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels’ adopted in 2012 by the United Nations General Assembly. Each of the forty-two paragraphs of that Declaration speaks to how commitment to the rule of law informs different aspects of the ‘three pillars’ of peace and security, development, and human rights said to define the UN’s organisational mission. Together with an additional report (United Nations, 2014) commissioned to specify precisely how the rule of law relates to and furthers each of those three pillars, these documents effectively re-describe the overarching mission of the UN in terms of the mission of the rule of law.

Liora Lazarus’s analysis (Reference Lazarus2018) of securitisation within rule of law discourse draws our attention to something different again. Based on an extensive study of domestic and international examples, Reference LazarusLazarus (2018: 1) contends that the rule of law ‘is shifting paradigmatically from a concept embodying the limitation of the coercive state, to one integral to maintenance of law, order and security’. Moreover, the pattern over time has been one in which security appears to have become the leading idea, despite the relevant discourse ostensibly being about the rule of law. Lazarus’s study thus highlights the conceptual distortions that can follow when the rule of law is placed in close companionship with another idea.

It is instructive to put Lazarus’s analysis alongside the UN Declaration on the rule of law because both examples provoke us to ask where an association between the rule of law and another idea might end and an entire re-conceptualisation of the rule of law might begin. It is one thing to accept that the rule of law is an ‘essentially contested concept’ (Section 1.2.5). But might it be another altogether to stretch the idea in forty-two possible directions, or to swallow it within an agenda that is difficult to reconcile with its foundational political concern for the conditions necessary for liberty?

2.4.1 Procedure

We are now well familiar with the idea that formal accounts of the rule of law make demands on the form that legal norms should take in a political order committed to the rule of law (Section 1.3.1). The demand that law in a condition of the rule of law consist of rules made publicly available is an example. These formal demands, however, say nothing about how those rules are applied. This is where the procedural dimensions of rule of law theory enter the picture. The concern here is with how law in a rule of law order is administered.

Why incorporate consideration of the rule of law’s procedural dimensions within a discussion about its connection to courts? Even the briefest acquaintance with some of the typical procedural demands associated with the rule of law – such as the requirement that rules be applied impartially, or the requirement that a person accused of a wrong be given an opportunity to be heard on the pointFootnote ⁴⁹ – soon reveals that the procedural demands of the rule of law align closely with the kinds of processes associated with, and comportments expected of, courts and judges specifically. We might say that the conduct of courts and the behaviour of judges have historically provided the model for theorising these procedural demands. But there is more that pushes rule of law theory towards courts than this. If we recall that the core political demand of the rule of law is the idea that rulers and ruled alike are mutually subordinate to law, then it follows that the rule of law must also provide an opportunity for the (impartial) application of rules to be contested. Procedures are accordingly thought to be crucial not just for providing a framework for the application of law per se, but for the work of the rule of law as an argumentative practice.

Fleshing out this and other aspects of the rule of law’s procedural dimensions has been one of the significant contributions made to contemporary rule of law theory by the philosopher Jeremy Reference WaldronWaldron (2008, Reference Waldron and Fleming2011, Reference Waldron2012b). Within that contribution, Waldron has especially emphasised the opportunities for voice and agency on the part of the subjects of a political order that lays claim to commitment to the rule of law that are offered by procedures. As he has put the point, the procedural side of the rule of law presents a mode of governance that allows people ‘a way of intervening on their own behalf in confrontations with power’ (Reference WaldronWaldron, 2008: 8). Moreover, Waldron contends, it is through its procedural demands that the rule of law ‘condemns official behaviour that treats individual agency as something of no consequence’ (Reference WaldronWaldron, 2008: 9). Of particular significance for our purposes is how by illuminating how procedures provide a vehicle through which subjects may make procedural demands on official conduct, Waldron brings the political dimensions of the rule of law into view. This resonates strongly with the analysis developed in Section 3.3.3 on thinking relationally about the rule of law.

2.4.2 Dignity

The invitation to attend to the circumstances of the legal subject that opens up through a focus on the rule of law’s procedural dimensions has also generated arguments about its connections to dignity (Reference Waldron and FlemingWaldron, 2011: 16).Footnote ⁵⁰ Here Waldron’s thinking is inspired by Lon Fuller’s jurisprudence, to which we also return in Section 3.3.3, and specifically the suggestion that departures from the eight principles associated with Fuller’s account of the rule of law (Section 1.3.2) are ‘an affront to man’s dignity as a responsible agent’ (Reference FullerFuller, 1969: 163).

In developing this suggestion into a proposition of rule of law theory, Reference WaldronWaldron (2012a: 201) describes dignity as a ‘status concept’ that has to do with the standing that a person has in society and in her dealings with others. The contribution of procedures to constituting that standing is not hard to see. If law is ‘a mode of governing people that acknowledges that they have a view or perspective of their own to present on the application of the norm to their conduct and situation’ (Reference WaldronWaldron, 2012a: 210), then the rule of law must provide the channels through which this acknowledgment can be expressed. Hence Waldron’s conclusion (Reference Waldron and Fleming2011: 16) that procedures embody ‘a crucial dignitarian idea–respecting the dignity of those to whom the norms are applied as being capable of explaining themselves’.

Waldron’s dignity analysis is raised here because it is closely tied to the work of courts, and specifically to the idea of the rule of law as an argumentative practice. We might ask, however, whether tethering the procedural demands of the rule of law primarily to patterns of practice typically adopted by courts sufficiently grasps the significance of procedure in the full range of institutional settings within which relationships between ruler and ruled arise. We might ask the same question of the associated emphasis on dignity. Reference NedelskyJennifer Nedelsky (2011: 141) has observed that in the context of state-subject relations in the (non-judicial) sphere of the administrative state, not all of the relations that express dignity will foster abilities that are crucial to a subject’s standing in relation to power, among which she includes abilities of ‘perception, competence, judgment and capacity to act’. Nedelsky’s provocation is that once we shift the institutional setting, it could be that we need more than dignitarian arguments to illuminate the significance of procedural protections to the rule of law’s core political demand of mutual subordination of ruler and ruled alike to the law. We return to these questions in Sections 3.3 and 3.4.

2.5.1 The Separation of Powers

It is usually the eighteenth century French political theorist, Reference Montesquieu and NugentMontesquieu (2001), who is credited for devising the model of the constitutional separation of legislative, executive, and judicial power. The basic thought behind the model is that within a given political order each kind of power is distinct and should be separated from the other two. Translating this theory to practice, the idea is that the institutional embodiments of these three different kinds of power – legislatures, executive branch entities, and courts – should each have a clear domain of operation that is functionally separate from the other two.

When the separation of powers is understood as a model of government aimed at limiting power, as well as providing mechanisms for calling such power to account, it is not difficult to see why it is sometimes suggested that the rule of law and the separation of powers are basically the same thing. There is however much more that needs to be thought through than this casual conflation allows (Reference WaldronWaldron, 2013).Footnote ⁵¹ On its own, the idea of the separation of powers tells us little about how the power of each branch of a constitutional order is constrained in relation to the other, or how conflicts between the branches are best resolved. It also tells us little about what role law plays in enforcing such hierarchies and what kinds of law play that role. Indeed, among the most resilient debates in contemporary constitutional theory concerns which branch – legislature or judiciary – should have the final say about what is valid and enforceable law within a given constitutional system.Footnote ⁵² The precise character of the relation thought to hold between the rule of law and the separation of powers will obviously also depend on which conception of the rule of law is in play in that evaluation (Reference BellamyBellamy, 2005).

2.5.2 Legislatures

As we examine more closely in Section 3.2.1, the legal form usually presumed to be operating within rule of law thought is enacted general rules. This is, however, not always what is in view when the idea is put in conversation with the constitutional institution of the legislature specifically. When that conversation arises, it usually does so in connection with one of two primarily political stories. The first is a story about the assumed character of the political system that engages in the enactment of legislation – representative democracy – and its relationship to the rule of law. The second is a story about the political agenda in play when such a representative democracy engages in the activity of legislating. Both stories warrant brief examination here to demonstrate why, when we see the idea of the rule of law placed in connection with legislatures and legislation, we need to step back and observe how and why that connection is being made.

We have said little so far about the claimed connections between the rule of law and democracy. In our examination of the rule of law’s companions (Section 2.3.2), we noted that democracy is frequently among the cluster of laudable ideals and practices that appear within ‘rule of law discourse’. We return to these companionships, but from a more critical perspective, in Section 2.6.1. Our concern for present purposes is that despite what appears to be indicated in this oft-seen companionship, the association between the rule of law and democracy is a site of controversy within rule of law thought (Reference Hutchinson and DyzenhausHutchinson, 1999; Reference Gargarella, Meierhenrich and LoughlinGargarella, 2021; Reference Krygier, Meierhenrich and LoughlinKrygier, 2021) that has close connections to associations between the rule of law and constitutionalism. Contests of rule of law thought that centre upon the proper role for legislatures will very often (also) be informed by an underlying story about the proper role for democracy in a political order committed to the rule of law.

Grasping these institutional and political undercurrents is equally important for understanding the second story about the political agenda thought (by some) to be reflected in the activity of legislating. To illuminate what is going on here, we need to return to the perceived intimate relationship between the rule of law and the courts discussed in Section 2.4, as well as the perceived tensions between the idea of the rule of law and political objectives associated with the ‘welfare state’. We investigate these tensions further in Section 2.6, but for present purposes we can get a sense of the issues in play by considering the stance taken against the role of legislatures and legislation in Friedrich Hayek’s treatment of the rule of law (Section 1.5.2).

Like Dicey before him (Section 1.5.1), Hayek’s pushback against legislation in association with the rule of law was not about legislation per se. It was about the political agenda he thought to be pursued (and the ‘will’ coercively imposed on individuals) when legislatures legislate to appropriate private wealth to fund social and collective causes. On this logic, the problem with democratically elected legislatures lies in how they are positioned to take (private law recognised) property away from its (private law protected) owners through the imposed will of enacted (public) law. The virtue of courts, by contrast, is that they exist to protect and enforce such private legal rights against such encroachments by the state (Sections 1.5.2 and 2.4).

This is a very simplified picture: Hayek’s thought on legislatures, legislation, courts and the rule of law developed over the course of his writings on the subject.Footnote ⁵³ The rule of law analyses of those sympathetic to Hayek’s work also contains a range of nuanced positions that enrich our understanding of the idea (Reference Allan, Austin and KlimchukAllan, 2014; Reference St-Hilaire and BaronSt-Hilaire & Baron, 2019). The point for present purposes is simply that once we peel back the layers, we will often see that arguments against legislation and legislatures pitched in a rule of law register are very often arguments for courts and their role in protecting individual rights, particularly private property rights. Similarly – but in reverse – arguments for legislatures pitched in a rule of law register are often likely to be arguments in favour of an at best limited role for courts in protecting private property rights against democratically mandated redistribution of wealth through legislation (Reference WaldronWaldron, 2007, Reference Waldron2012b).

Yet as we will see in Section 2.6, for some the ideological tendencies of contemporary rule of law discourse and practice are so hardwired towards the protection of private property rights as to foster no plausible alignment with a strong participatory democracy committed to redistributing private wealth to social and collective causes through force of legislation. Historical attitudes towards legislatures and legislation are more complex. Dicey, for example, was a strong supporter of parliamentary sovereignty as a core principle – along with the rule of law – of English constitutionalism. Yet he also railed against the rising tide of late nineteenth-century political collectivism that he thought was seeing the law of England ‘“officialised” … by statutes passed under the influence of socialistic ideas’ (Reference DiceyDicey, 1915: 150; Reference LoughlinLoughlin, 1992: 153–9).

The crucial takeaway, then, is that engagements between the rule of law and legislatures are rarely about either idea in the abstract. They are more likely to be about advancing or deflecting ideologically laden background contests about what the rule of law is meant to do, how, and for whom.

2.5.3 The Executive Branch

On the one hand, the rule of law analysis of the executive branch is straightforward: it is here, after all, that we encounter the fundamental preoccupation of the former with power held by political entities with authority to govern. The executive branch of a constitutional system is the government within that system. Its actors and activities lie at the very heart of rule of law thought.

On the other hand, the rule of law analysis of the executive branch can be immensely complex. For a start, it is often difficult to work out who or what the executive branch is. While the legislative branch of a constitutional order is institutionally associated with legislatures, and the judicial branch with courts, any number of institutions might comprise what we know as the executive branch. These may range from the office of the president or of a constitutional monarch, to ministers of government in the Westminster model, to government agencies or bureaucracies, administrative decision-making tribunals, and private service providers contracted to perform the functions of government.Footnote ⁵⁴ Who or what is the executive is a question that has been answered differently in different constitutional systems and at different points in history, and there is every reason to think it will continue to be.

Our aims here, therefore, are necessarily modest: to no more than trace out some of the key questions associated with analyses of actors and activities of the executive branch that are customarily framed in a rule of law register.

2.6.1 The Ideology of Rule of Law Discourse

The rhetorical heft of the rule of law is a force in its own right, carrying ‘powerful overtones of positive evaluation’ (Reference Waldron, Meierhenrich and LoughlinWaldron, 2021: 128; compare Reference SeppänenSeppänen, 2016). This is why it is important to reflect on what work the apparently good reputation of the rule of law is doing within a given engagement with the idea.Footnote ⁶² This question is especially salient in relation to the phenomenon of ‘rule of law discourse’ with which we became acquainted in Section 2.3.2.

It is critical to appreciate the temporal context of rule of law discourse as a late twentieth and early twenty-first century phenomenon, and its association with neoliberalism specifically. As explained in Section 1.5.2, neoliberalism refers to a political philosophy that conceives of the role of government primarily in terms of facilitating conditions in which the market can take root as the central organising mechanism of social and political order. It takes little to recognise Hayek as the father of neoliberalism so understood, and of the particular vision of the rule of law promoted within it. Relevantly for present purposes, the key historical shift to understand is that, alongside the growth of international law and international institutions, the second half of the twentieth century saw dramatic institutional shifts from ‘welfare state’ to ‘neoliberal’ models of government across the world. These political and institutional shifts were however not only facilitated by governments of the wealthy nations of the west. Their replication and transplantation also became the mission of international rule of law promotion and measurement initiatives.Footnote ⁶³

The ever-consolidating association between the rule of law and the neoliberal political agenda within this global practice is now impossible to miss (Reference TamanahaTamanaha, 2008). So too is the role of rule of law discourse as its vehicle. As Reference Humphreys, Meierhenrich and LoughlinHumphreys (2021: 477) has explained, in this era rule of law discourse has become an economic discourse used to refer primarily ‘to a set of measures aiming to reduce the role of government in economic life and sharpen the boundary between public and private interests’. Initially directed at the independence of judiciaries to ensure secure enforcement of property and contractual rights, as it expanded rule of law discourse ‘enhanced the privatization of state enterprises and protections of investors’ rights’ (Reference Humphreys, Meierhenrich and LoughlinHumphreys, 2021: 477–8).

Bringing these details into the picture is important not merely to witness the ideological tilt of rule of law discourse as a distinctive late twentieth and early twenty-first century phenomenon, but also to assess the fate of companion ideas within it. It is common, for example, to see the rule of law paired with democracy in such discourse. Yet as Joel Reference NgugiNgugi (2005) has analysed, this discursive pairing masks how the practical operationalisation of the neoliberal conception that informs the rule of law side of that companionship effectively forecloses the kind of participatory politics advertised in the democracy side. According to Reference NgugiNgugi (2005: 516), rule of law promotion projects ‘predetermine politics’, insulating a particular neoliberal vision of the good ‘from the reach of political debate, consensus or revision by the participants in a given polity’ while embedding the formal institutional trappings of the rule of law. Analyses of this kind make clear that to engage critically with rule of law discourse, it is essential to pay attention to what actually happens on the ground, behind, beneath or alongside its rhetoric (Reference Chalmers, Pahuja, Meierhenrich and LoughlinChalmers & Pahuja, 2021; Reference Humphreys, Meierhenrich and LoughlinHumphreys, 2021).

What happens next? The argument might be put that the pendulum has swung too far towards a neoliberal conception of the rule of law and its associated values – at least in global rule of law practice – such that it is no longer possible to recruit the term without bringing a particular set of ideological attachments along for the ride. Perhaps Judith Shklar was right when she suggested ‘it would not be difficult to show that the phrase “the Rule of Law” has become meaningless thanks to ideological abuse and general over-use’ (Reference Shklar, Hutchinson and MonahanShklar, 1987: 1). Be that as it may or may not, the idea of the rule of law has had many adventures in its life so far, and each has been associated different visions of politics (Reference LoughlinLoughlin, 2018). This is something that we should simply expect from an idea that has always straddled political and legal thought and practice, and always will.

3.2.1 The Rule of Rules?

The requirement that law consists of general rules is often considered the essence of the rule of law (Reference RazRaz, 1979: 215). In some respects, this is justified: few would dispute that rules are the archetypal legal form. The idea that law in a rule of law order has general application is also critical to how the latter is thought to foster the equality of all before the law. Here, again, its association with rules makes sense.

Rules, however, are not the only legal form in the rule of law’s toolbox. When philosophers seek to highlight this, they often do so by noticing that law is also comprised of standards and principles (Reference WaldronWaldron, 2016: 8.2). What this expansion of the categories of legal artefacts that comprise the law of the rule of law means depends on the theory in play. For example, if one subscribes to the view that the rule of law consists in the predictable application of rules, the more open formulation of standards and principles will likely provoke controversy (Reference Waldron, Meierhenrich and LoughlinWaldron, 2021: 124–5). Yet as we learned throughout Part 2, the basis of objections in the name of the rule of law to different kinds of law often lies in ideological commitments that regard virtually all powers of government as coercive, and which tolerate only the strictest negative (freedom from) conceptions of the rule of law.

Other complexities have developed around the rule of law’s presumptive attachment to general rules. These are especially reflected in theories of regulation, which often position the looser, formally diverse, and more horizontal modes of regulatory law in opposition to an idea of law as a framework of rules (Reference WestermanWesterman, 2018: 141–67). These assumptions about what law in the context of regulation is not have often led theorists of regulation to distance that endeavour from the ideal of the rule of law. Yet here again certain theoretical assumptions and manoeuvres are in play. Theories of regulatory law that sideline the relevance of the rule of law ideal tend to attach to theories of the rule of law capable of supporting such a move (Reference McDonaldMcDonald, 2004).

These tensions might however invite revisitation in circumstances in which their implications have not yet been fully tested. Insisting that regulatory law is entirely different to ‘traditional’ law, or labelling all modes of law as ‘regulatory’, can carry consequences for ‘ordinary people’s understandings of what the state is, does, and ought to do’ (Reference ArthursArthurs, 2005: 830): precisely the kinds of understandings that have long preoccupied rule of law thought. Sidelining the idea of the rule of law might also be misplaced in situations where subjects wish to make much stronger demands on political power than is possible within the more horizontal and less coercive arrangements associated with regulation. Environmental protection is an example.

Much may accordingly be at stake in an insufficiently interrogated conflation of the rule of law with the rule of rules if such operates to set directions of thought that move away from its core political demand of mutual subordination to law. As is always the case, much will depend on how the rule of law is theorised in relation to these questions. But as we will see next and develop further in Section 3.4.2, much will also depend on a heightened awareness of the non-neutrality of different legal forms in terms of how they position the rule of law’s people, in relation to each other as well as in relation to the law that rules.

3.2.2 Revisiting Discretion

Discretion has long provoked panic in the hearts of rule of law theorists, who at their most fearful have regarded it as little more than arbitrary power in legal clothing. Certainly, in terms of its form, discretion is entirely different to rules. Discretion leaves its repository ‘free to make a choice between possible courses of action or inaction’ (Reference DavisDavis, 1969: 4). This crucial feature of freedom of choice on the part of the repository, whatever its degree, necessarily produces a different form of legal relation to that which arises within an order of rules.

The preoccupation of rule of law thought with general rules can distract us from the political or power dimensions of ‘law’ in the phrase ‘the rule of law’. Like enacted rules and the rulings of courts, the legal pedigree (section titled The Executive as Lawmaker ) of discretionary powers is usually not in question. Most are expressly granted to a particular office holder by statute. This mark of legal pedigree does not however change the fact that discretionary powers are powers in a way that rules are not. They give their repository choices as to possible courses of action in relation to the circumstances of the person subject to them.

In rule of law theory, the idea that discretion is little more than arbitrary power in legal clothing is most strongly associated with the thought of A. V. Dicey (Section 1.5.1), though it is notable that his complaints did not extend to the many judicial discretions that are part of the common law method that he and Hayek after him (Sections 1.5.2 and 2.5.2) so revered. This is perhaps because discretion in the judicial context is treated more as a question about law than about the rule of law (Reference SandroSandro, 2022: 116–68). The kind of discretion targeted by Dicey was administrative: that reposed in actors of the executive (Section 2.5.3). We have seen that Dicey, in a similar vein to Hayek after him, bemoaned legislatively mandated encroachments on private law rights associated with arrival of the ‘welfare state’ (Sections 2.5.2 and 2.6). His angst towards discretion, therefore, was not simply about arbitrary power per se. It was tethered to his defence of England’s existing political and institutional order.

It was impatience with the extent to which the ghost of Dicey hovered over Anglo-American legal thought that led Reference DavisKenneth Culp Davis (1969) to undertake his seminal work on ‘discretionary justice’. Davis’s complaint was that extravagant theories of the rule of law which assumed that enacted rules were the only legal form (and courts the only supervisory institutions) through which the rule of law could be maintained had discouraged scholars from engaging seriously with discretion as a site of legal inquiry (Reference DavisDavis, 1969: 30, 28–41). Davis did not doubt that discretion could be of questionable legality. His point was that not all discretion is necessarily at odds with the rule of law, or indeed with just decisions in individual cases. If appropriately confined and structured, the exercise of discretionary powers could be compatible with the rule of law (Reference DavisDavis, 1969: 4, 30).

The main rule of law question in relation to discretion is thus thought to concern what degree of curtailment of discretionary powers is ideal in order to for such powers to be compliant with the rule of law (Reference RazRaz, 2019: 4). This states the key problem, but we might here push it further. As scholars of discretion have taught us, discretionary administrative power can have both ‘individualised’ aspects which attend to the particular attributes and circumstances of the individual subject to it, as well as ‘policy-based’ aspects that allow room for politics and political judgement (Reference GalliganGalligan, 1996). To better appreciate how and why discretion presents a dilemma for the rule of law, therefore, we need to bring the latter’s core political demand of mutual subordination to law back into view. Leading with this demand, we see that the most serious rule of law worry presented by discretionary powers consists in the space taken up by political considerations within them – and the options available, if any, to the subject of such a power to do anything about it (Reference CartierCartier, 2009; Reference Rundle, Meyerson, Mackenzie and Mac-DermottRundle, 2021a).

3.2.3 Friends or Foes of the Rule of Law?

The structure, operation and content of what is often called the ‘administrative state’ has been held out as evidence that law in practice does not always look the way it does in theory (Reference RubinRubin, 1989). As we have already encountered in our brief engagement with the fluid and horizontal forms regulatory law (Section 3.2.1), contemporary government action is channelled through a far greater proliferation of legal forms and technologies than those which have traditionally preoccupied rule of law thought. How, therefore, might we revisit the rule of law in relation to these developments?

We might begin by recognising that even if such developments seem new, the rule of law questions raised by them will often be enduring. The phenomenon of soft law provides an illustration (Reference Creyke, McMillan, Pearson, Harlow and TaggartCreyke & McMillan, 2008). Whether used as a tool to aid consistency in administrative decision-making, or issued as guidance to subjects about the operation of ‘hard’ law, soft law often looks like law and often also does law’s normative work in guiding conduct, but lacks legal pedigree (section titled The Executive as Lawmaker). Soft law accordingly raises a range of rule of law questions. On the one hand it might be lauded for how it aids decision-makers to make consistent decisions across like cases, or for how it helps subjects to understand what the law asks of them (Reference Crawford, Boughey and CrawfordCrawford, 2020). On the other, there are concerns about the overuse of soft law in circumstances where democratically legitimated hard law is meant to rule (section titled The Executive as Lawmaker).

The now ubiquitous practice of contracted-out government service delivery (or outsourcing) has been much less interrogated in rule of law terms. Recalling that the protection of private law rights in contract has long been regarded as among its core offerings, we might say that the rule of law does important work in providing security to the parties to an outsourcing contract. But what about those subject to government functions performed this way? Such persons have no apparent place within a rule of law story concerned principally with the enforcement of contract because ordinarily they possess no contractual rights. We could also ask whether facilitating the performance by private contractors of government functions authorised and delineated through legislation might change the law in the rule of law, in so far that such functions must be translated into services or tasks capable of forming the subject matter of contract. Here we might wonder where translation ends and transformation begins.

It is the rise of algorithmic decision-making, however, that has generated the most attention among those concerned to illuminate the relationship between the rule of law and new forms of government action. Many of the worries here, such as who is answerable for the work of these technologies and how, are familiar (Reference CarneyCarney, 2019; Reference Zalnieriute, Moses and WilliamsZalnieriute et al., 2019). Concerns are also regularly voiced about the lack of transparency and potential arbitrariness of automated technologies, including how they prevent subjects from knowing how the law is being applied to them (Reference HildebrandtHildebrandt, 2016; Reference Kennedy and BarfieldKennedy, 2020; Reference NgNg, 2021; Reference Maxwell and TomlinsonMaxwell & Tomlinson, 2022). While the potential for such technologies to produce results that are consistent or predictable is lauded by some (Reference Zalnieriute, Moses and WilliamsZalnieriute et al., 2019), the potential loss of contestation in relation to the application of law worries others (Reference HildebrandtHildebrandt, 2018).

These objections and endorsements call upon familiar ideas in the history of rule of law thought. Yet computer-assisted technologies arguably also introduce entirely new puzzles into the picture. Recommendations that there should always be a ‘human in the loop’, for example, express concern that the pendulum has swung too far such that the human being and distinctly human cognitive and moral capacities need to be pushed to the foreground of discussion about the implications of such technologies for the rule of law (Reference JonesJones, 2017; Reference BatemanBateman, 2020; Reference PasqualePasquale, 2020). Though a perhaps unexpected catalyst for a fundamental question, the advent of algorithmic decision-making invites us to reflect on how and in what ways the rule of law fundamentally depends on its people, in terms of who they are expected to be as well as how they are expected to act.

3.3.1 Subjects

To the extent that they figure at all, subjects within rule of law theory are typically cast as individuals doing or possessing particular things, like having an interest in their individual liberty, or being the holder of particular rights in private or public law. Sometimes these subjects take on more distinct identities, such as all (natural and artificial) persons within a territory, or the subjects of a particular nation state. At their least defined the subjects of the rule of law emerge as little more than undifferentiated units of a society or population.

We might begin an attempt to excavate the subject from rule of law thought with the safe assumption that subjectivity in rule of law thought will be shaped by the particular conception of the rule of law in play. For example, in those ‘substantive’ conceptions of the rule of law that rank respect for human rights among its requirements (Section 1.3.1), the subject of the rule of law will be presumed to be the bearer of human rights in addition to whatever other characteristics they might possess. The conception of law in play will also matter. If the ‘law’ in the rule of law is presumed to take the form of rules, for example, its subject will be expected to possess the rational and moral capacities necessary to follow such rules and to be answerable for their breach.

We can also readily assume that subjectivity in rule of law thought will be shaped by claims made about its purposes, contributions, or values (Section 2.2.1). For example, if the claim is that observance of the principles of the rule of law fosters a particular experience of liberty, or the recognition of human dignity, or the capacity to enforce legal rights in contract or property, a particular conception of the subject will be needed to lend support to such claims. We might equally see shifts in how subjectivity is understood depending on whether it is presented in singular or plural form. The subject might appear in singular form, for example, when the analysis at issue concerns the significance of particular legal procedures, like the right to be heard in relation to an allegation (Section 2.5.2). By contrast, the rule of law’s subjects might be more likely to appear in plural form when its political dimensions are in focus, such as in the idea that subjects of the rule of law are those who are free from the encroachments of government other than through that which is prescribed by law.

These observations are helpful, and likely uncontroversial. But might it possible to say something more precise about how subjectivity within the rule of law can be theorised? The provocation developed here is that we can indeed go further in theorising the subject of the rule of law if we remind ourselves that the rule of law is an idea that straddles political and legal thought. Following this logic, subjectivity to and within the rule of law must have both political and legal dimensions. We begin with the former.

3.3.2 Officials

A number of personae spring to mind when we speak of the officials of the rule of law. The first is that of the legislator: the maker of the enacted general rules around which so much of legal thought is built. In theoretical engagements with the rule of law, this official might appear in a number of different forms, from the law-giving ruler (Reference FullerFuller, 1969: 33) to the sovereign lawmaker (Reference HobbesHobbes, 2017) to the de-personified institution of the parliament.

The most encountered official within theories of the rule of law, however, is the judge. Whether in personified form or represented in the institution of a court, theories of and theoretical engagements with the rule of law see this figure interpreting and applying statutes, developing the common law, enforcing legal rights in contract or property, adjudicating disputes impartially, conducting judicial review of government action, applying the procedures of criminal law, and more. Each of these activities is associated not just with the work of judges or courts generally, but also with the work of the rule of law specifically.

As is also the case for its subjects, the ways in which the officials of the rule of law might appear will depend on how the latter is theorised. For example, the idea of the official implicated in a ‘formal’ conception of the rule of law (Section 1.3.2) would be someone who complies with the rule of law’s prescriptions irrespective of the justice or injustice of the content of laws so made. By contrast, if the focus is on the rule of law’s role in protecting private property rights (Section 1.5.2), the official might present as a person of conservative political comportment committed to maintaining the socioeconomic status quo through the careful incremental development of private law protections. Differently again, those who prioritise inquiry into the ‘teleology’ or purpose of the rule of law (Section 1.4) might conceive of its official as someone poised to ‘temper’ power through the enforcement of context-specific legal constraints appropriate to particular sociological conditions.

The point being made is not just that particular theoretical approaches to the rule of law will implicate different conceptions of its officials, but that the comportment of those officials is critical to the conception of the rule of law in play. The tendency for rule of law theory to emphasise capacities for reason and impartiality, for example, shows just how influential the figure of the judge has been to our thinking around the idea. Indeed, according to Judith Reference Shklar, Hutchinson and MonahanShklar (1987: 1, 3), in its emphasis on the rule of reason the Aristotelian tradition of rule of law thought positions ‘the character one must impute to those who make legal judgments’ at the centre of the idea itself, demanding that its official is a person who possesses a ‘constant disposition to act fairly and lawfully’.

The extent to which rule of law thought continues to be dominated by the judge as its paragon official likely has much to do with the dominance of legal theorists in developing contemporary theories of the rule of law. We have learned a lot about how judges relate to the law and the rule of law alike through this work in legal theory.Footnote ⁶⁸ But as we saw earlier (Section 3.2.3), ‘official’ action in modern governmental conditions takes a wide variety of forms, such that identifying who are the rule of law’s officials presents both conceptual and practical puzzles.Footnote ⁶⁹ Who, for example, are the officials of the rule of law within an instance of contracted-out government service delivery? Or in a system of automated government decision-making?Footnote ⁷⁰ Reference WaldronJeremy Waldron (2016: 3.4) makes an important point when he observes that although the rule of law generates a presumption in favour of the liberty of subjects, a contrary presumption applies to its officials: we want these people only to act ‘under express legal authorization’. Thus, even if we were to designate the persons (and machines!) of new governmental forms as officials of the rule of law, there are still questions to answer about how to pull them into its demands.

Underlying such questions is a challenge as old as the idea of the rule of law itself. When the ground underneath it shifts, we will sometimes need not merely to reappraise the demands carried by the idea, but also the people we associate with those demands. In a far greater sense than seen in relation to its subjects, theories of the rule of law must be supple enough to accommodate the sheer variety of people, roles and institutions associated with those who wield power within a political order ostensibly committed to the ideal. This is a significant demand on rule of law thought in its own right. But it is made more significant still when we bring (back) in the people at the receiving end of political power held and exercised this way.

3.4.1 Available Equally to All?

When the late nineteenth century English constitutional theorist, A. V. Dicey, argued for a strong association between the rule of law and equality, he meant the equality of all before the same law (Section 1.5.1). But when Dicey wrote about the importance of this and other offerings of the rule of law to ‘us’ (Reference Walters, Meierhenrich and LoughlinWalters, 2021: 153), who exactly belonged to that ‘us’? Women? Children? The peoples of England’s then colonies, penal subjects and indigenous persons alike (Reference LinoLino, 2018)? Or only a very small group of white English men?

It is relatively rare for theorists of the rule of law to pay explicit attention to the people to whom its claimed offerings are denied, in whole or in part.Footnote ⁷² Yet asking who is missing – or missing out – within rule of law thought and practice illuminates much about the tendencies of inclusion and exclusion that animate different ways of thinking about the idea. The reason(s) why certain people have been precariously positioned in relation to the rule of law cannot be answered in the same way for all. Still, the thought developed here is that all non- or partial persons of the rule of law have two things in common. The first is the significance of their status, whether assigned by the social order in which such persons are located,Footnote ⁷³ or through the operation of law.Footnote ⁷⁴ The second is the denial of the rule of law’s political demand of mutual subordination to law, in their case.

A number of sites of inquiry might have been brought into focus to explore these thoughts, not least feminist (Reference Munro, Meierhenrich and LoughlinMunro, 2021) and critical race theory (Reference Bridges, Meierhenrich and LoughlinBridges, 2021) approaches to the rule of law. Here, however, we will bring these observations into relief by reflecting on the place of slavery within rule of law thought.

3.4.2 Subjectivity and Legal Form

There is more to understanding the conditions in which the rule of law’s core political demand of mutual subordination to law can fail than noticing the consistency with which such failure attaches to people who have been assigned certain social or legal statuses. We need also to pay close attention to connections between subjectivity and form: that is, to how subjects are structurally positioned within the legal and institutional forms through which this failure of mutual subordination occurs.

As we learned in Section 3.2.1, the legal form long presumed to be the hero of rule of law thought – and usually presupposed by it – is enacted rules of general application. The idea that law in a rule of law order is comprised of generally applicable rules is critical to the claim that it fosters the equality of all before the law, as well as to the claim that liberty resides in the spaces where the rules do not apply. By contrast, the legal form long considered the enemy of the rule of law is discretion, ostensibly because it appears to offer an opportunity for the exercise of arbitrary power. Yet as we saw in Section 3.2.2, discretion is more complex than initial responses to it in rule of law theory might suggest, and at least some have insisted that appropriately structured and carefully exercised discretions can be compatible with the rule of law (Reference DavisDavis, 1969: 4, 30).

We return to discretion here to recast this point into one about how not all discretions are the same in relational terms. The kinds of discretionary power within which the rule of law’s core political demand of mutual subordination fares the worst tend to be those that see power vested personally in an occupant of political office and exercisable by reference to irretrievably political considerations of the public or national interest. It is not coincidental that these kinds of discretionary powers tend to attach to subjects who occupy a marginalised social or political status, as their ubiquity in immigration law makes clear (Reference Kneebone and KneeboneKneebone, 2009).

From a rule of law perspective, the point to notice about such powers is this. Asymmetries of power will invariably attach to any legal arrangement in which only one side possesses the authority of the state. Such asymmetries can be expected even within a rules-governed political relationship between official and subject, but at least this relationship will be framed by rules known in advance, and any discretion as to the application of those rules will usually be contestable.Footnote ⁷⁹ The form of relation constituted within a discretionary power is entirely different. The crucial feature of choice that is given only to the official displaces the structure of mutual subordination characteristic in an order of rules (Reference Rundle, Meyerson, Mackenzie and Mac-DermottRundle, 2021a: 238). The more inflated the discretion, in terms of favouring the power of the official, the more disenfranchised the position of the subject. Complex discretionary powers like those commonly seen in immigration law operate to radically diminish the subject’s agency within the official-subject relationship at the same time as they radically expand that of the official (Reference WilbergWilberg, 2017; Reference MacklinMacklin, 2018; Reference RayRay, 2021; Reference Rundle, Meyerson, Mackenzie and Mac-DermottRundle, 2021a). Indeed, sometimes the term relationship may barely be applicable – sheer power packaged in ‘a tinsel of legal form’ (Reference FullerFuller, 1958: 660) might be a more apt description.

The devices of contemporary immigration law are just one place we might look to develop new frontiers of rule of law thought concerned with granular connections between personhood, power, and form of this kind. The enduring problems of politics and law invent themselves anew in new conditions. Thus, if our thinking about the rule of law is to remain serviceable to emerging challenges, we must always be ready to interrogate our assumptions, reassess our tools, and be open to new ways of seeing if fresh approaches to addressing those challenges are to be fostered.